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2011-224
Contract #27199 Encumbrance 9SO05605 INDIAN RIVER LAGOON LICENSE PLATE FUNDED COST- SHARE AGREEMENT BETWEEN THE ST . JOHNS RIVER WATER MANAGEMENT DISTRICT AND INDIAN RIVER COUNTY FOR INDIAN RIVER COUNTY POLLUTION CONTROL SOUTH PHASE 1 ALGAL TURF SCRUBBER SYSTEM THIS AGREEMENT is entered into by and between the GOVERNING BOARD of the ST . JOHNS RIVER WATER MANAGEMENT DISTRICT ("the District") , whose address is 4049 Reid Street , Palatka , Florida 32177 , and INDIAN RIVER COUNTY , a political subdivision of the State of Florida , whose address is 1801 27th Street, Admin Bldg . A, Vero Beach , FL 32960 - 3388 ("Recipient" ) . All references to the parties hereto include the parties , their officers , employees , agents , successors , and assigns . WHEREAS , the waters of the state of Florida are among its basic resources, and it has been declared to be the policy of the Legislature to promote the conservation, development , and proper utilization of surface and ground water; and WHEREAS , pursuant to chapter 373 , Fla . Stat . , the District is responsible for the management of the water resources within its geographical area ; and WHEREAS , pursuant to section 320 . 08058 ( 10) , Fla . Stat . , the Legislature has established a program whereby a portion of license plate revenues are directed toward habitat restoration and I mprovement of water quality within the Indian River Lagoon , which may serve as matching funds for other local , state , or federal funds or grants ; and WHEREAS , the District has determined that providing cost- share funding to Recipient for the purposes provided for herein will benefit the water resources by providing for habitat restoration and/or I mprovement of water quality within the Indian River Lagoon, as further described below ; and WHEREAS , the parties have agreed to jointly fund the following project in accordance with the funding formula further described in the Statement of Work, Attachment A (hereafter "the Project") : Recipient will utilize staff and subcontractors to design and permit the Algal Turf Scrubber System which will treat ten million gallon per day of polluted water from the Indian River Fan-ns Water Control District South Relief Canal . The duplex pumping station will be designed inside the South Relief Canal right-of-way . NOW , THEREFORE , in consideration of the aforesaid premises , and the funding assistance hereinafter specified, Recipient agrees to perform and complete the activities provided for in the Statement of Work, Attachment A . Recipient shall complete the Project in conformity with the contract documents and all attachments and other items incorporated by reference herein . This Agreement consists of all of the following documents : ( 1 ) Agreement, ( 2) Attachment A- Statement of Work; and (3 ) all attachments , if any . The parties hereby agree to the following teens and conditions . 1 . TERM ; WITHDRAWAL OF OFFER ( a) The tern of this Agreement is from the date upon which the last party has dated and executed the same ("Effective Date") until September 15 , 2012 ( "Completion Date") . Recipient shall not commence the Project until any required submittals are received and approved . Recipient shall commence performance on or after October 1 , 2011 and shall Page 1 Contract #27199 Encumbrance # 5005605 complete performance in accordance with the time for cornpletion stated in the Statement of Work. Time is of the essence for every aspect of this Agreement , including any time extensions . Notwithstanding specific mention that certain provisions survive termination or expiration of this Agreement , all provisions of this Agreement that by their nature extend beyond the Completion Date survive termination or expiration hereof. (b) This Agreement constitutes an offer until authorized, signed and returned to the District by Recipient . This offer terminates sixty (60) days after receipt by Recipient. 2 , DELIVERABLES . Recipient shall fully implement the Project , as described in the Statement of Work , Attachment A . Recipient is responsible for the professional quality , technical accuracy , and timely completion of the Project . Both workmanship and materials shall be of good quality . Unless otherwise specifically provided for herein, Recipient shall provide and pay for all materials , labor , and other facilities and equipment necessary to complete the Project . The District ' s Project Manager shall make a final acceptance inspection of the Project when completed and finished in all respects . Upon satisfactory completion of the Project, the District will provide Recipient a written statement indicating that the Project has been completed in accordance with this Agreement . Acceptance of the final payment by Recipient shall constitute a release in full of all claims against the District arising from or by reason of this Agreement . 3 . OWNERSHIP OF DELIVERABLES . Unless otherwise provided herein, the District does not assert an ownership interest in any of the deliverables under this Agreement . 4 , AMOUNT OF FUNDING ( a ) For satisfactory completion of the Project , the District shall pay Recipient approximately twenty -eight percent ( 28 % ) of the total cost of the Project , but in no event shall the District cost- share exceed $ 55 , 795 . The District cost- share is not subject to modification based upon price escalation in implementing the Project during the term of this Agreement . Recipient shall be responsible for payment of all costs necessary to ensure completion of the Project . Recipient shall notify the District ' s Project Manager in writing upon receipt of any additional external funding for the Project not disclosed prior to execution of this Agreement . ( b ) In- Kind Services. Recipient agrees to provide $ 144 , 205 in the form of cash and in-kind services for the Project, as further described in the Statement of Work , which shall count toward Recipient ' s cost- share obligation . 5 . PAYMENT OF INVOICES (a) Recipient shall submit one invoice upon successful completion of the Project by one of the following two methods : ( 1 ) by mail to the St . Johns River Water Management District , Director, Division of Financial Management , 4049 Reid Street , Palatka , Florida 32177 , or ( 2) by e-mail to acctpay(usjrwmd . eom . The invoice shall be submitted in detail sufficient for proper pre-audit and post-audit review . Recipient shall be reimbursed for one hundred percent ( 100 %) of approved costs , but not-to -exceed $ 55 , 795 . If necessary for audit purposes , Recipient shall provide additional supporting information as required to document invoices . (b ) End of District Fiscal Year Reporting. The District ' s fiscal year ends on September 30 . Irrespective of the invoicing frequency, the District is required to account for all Page 2 Contract #27199 Encumbrance # 5005605 encumbered funds at that time . When authorized under the Agreement, submittal of an invoice as of September 30 satisfies this requirement . The invoice shall be submitted no later than October 30 . If the Agreement does not authorize submittal of an invoice as of September 30 , Recipient shall submit , prior to October 30 , a description of the additional Project work completed between the last invoice and September 30 , and an estimate of the additional amount due as of September 30 for such work. If there have been no prior invoices , Recipient shall submit a description of the work completed on the Project through September 30 and a statement estimating the dollar value of that work as of September 30 . (c ) Final Invoice . The final invoice must be submitted no later than 45 days after the Completion Date; provided, however, that when the Completion Date corresponds with the end of the District ' s fiscal year ( September 30) , the final invoice must be submitted no later than 30 days after the Completion Date . Final invoices that are submitted after the requisite date shall be subject to a penalty of 10 percent of the invoice. This penalty may be waived by the District, in its sole judgment and discretion, upon a showing of special circumstances that prevent the timely submittal of the final invoice. Recipient must request approval for delayed submittal of the final invoice not later than ten ( 10 ) days prior to the due date and state the basis for the delay. (d) All invoices shall include the following information : ( 1 ) District contract number; (2 ) District encumbrance number; (3 ) Recipient ' s name and address (include remit address , if necessary) ; (4) Recipient ' s invoice number and date of invoice ; ( 5 ) District Project Manager; ( 6 ) Recipient ' s Project Manager; (7 ) supporting documentation as to cost and/or Project completion (as per the cost schedule and other requirements of the Statement of Work ; in addition , see Attachment B , "CONTRACT PAYMENT REQUIREMENTS FOR STATE- FUNDED COST REIMBURSEMENT CONTRACTS ; " ( 8 ) Progress Report ( if required) ; (9 ) Diversity Report (if otherwise required herein) . Invoices that do not correspond with this paragraph shall be returned without action within twenty (20) business days of receipt , stating the basis for rejection . Payments shall be made within forty- five (45 ) days of receipt of an approved invoice . ( e) Travel expenses . If the cost schedule for this Agreement includes a line item for travel expenses , travel expenses shall be drawn from the project budget and are not otherwise compensable. If travel expenses are not included in the cost schedule, they are a cost of providing the service that is borne by Recipient and are only compensable when specifically approved by the District as an authorized District traveler. In such instance, travel expenses must be submitted on District or State of Florida travel forms and shall be paid pursuant to District Administrative Directive 2000 -02 . ( f) Payments withheld . The District may withhold or, on account of subsequently discovered evidence, nullify, in whole or in part , any payment to such an extent as may be necessary to protect the District from loss as a result of: ( I ) defective work not remedied ; (2 ) failure to maintain adequate progress in the Project ; ( 3 ) any other material breach of this Agreement . Amounts withheld shall not be considered due and shall not be paid until the ground( s) for withholding payment have been remedied . 6 . LIABILITY AND INSURANCE . Each party is responsible for all personal injury and property damage attributable to the negligent acts or omissions of that party, its officers , employees and agents . Nothing contained herein shall be construed or interpreted as denying to any party any remedy or defense available under the laws of the state of Florida, nor as a waiver of sovereign Page 3 Contract #27199 Encumbrance # S005605 immunity of the state of Florida beyond the waiver provided for in section 768 .28 , Fla . Stat . , as amended . Each party shall acquire and maintain throughout the term of this Agreement such liability, workers ' compensation, and automobile insurance as required by their current rules and regulations . 8 . FUNDING CONTINGENCY . This Agreement is at all times contingent upon funding availability , which may include a single source or multiple sources , including, but not limited to : ( 1 ) ad valorem tax revenues appropriated by the District' s Governing Board ; (2) annual appropriations by the Florida Legislature , or (3 ) appropriations from other agencies or funding sources . Agreements that extend for a period of more than one Fiscal Year are subject to annual appropriation of funds in the sole discretion and judgment of the District's Governing Board for each succeeding Fiscal Year . Should the Project not be funded , in whole or in part , in the current Fiscal Year or succeeding Fiscal Years , the District shall so notify and this Agreement shall be deemed ternninated for convenience five (5 ) days after receipt of such notice , or within such additional time as the District may allow . For the purpose of this Agreement , "Fiscal Year" is defined as the period beginning on October 1 and ending on September 30 . 9 . PROJECT MANAGEMENT (a) The Project Managers listed below shall be responsible for overall coordination and management of the Project . Either party may change its Project Manager upon three ( 3 ) business days prior written notice to the other party . Written notice of change of address shall be provided within five (5 ) business days . All notices shall be in writing to the Project Managers at the addresses below and shall be sent by one of the following methods : ( 1 ) hand delivery ; (2 ) U . S . certified mail ; ( 3 ) national overnight courier; ( 4 ) e- mail or, ( 5 ) fax . Notices via certified mail are deemed delivered upon receipt . Notices via overnight courier are deemed delivered one ( 1 ) business day after having been deposited with the courier . Notices via e-mail or fax are deemed delivered on the date transmitted and received . DISTRICT RECIPIENT Frank Sakunna , Project Manager Keith McCully PE , Project Manager St . Johns River Water Management District Indian River County 525 Community College Parkway SE 1801 27th Street , Admin Bldg . A Palm Bay, Florida 32909 Vero Beach , FL 32960 -3388 ( 321 ) 984 -4944 ( 772 ) 226 - 15 62 E -mail : bsakuma u,) sjrwnnd . com E -mail : kmccully(4),ircgov . conn (b) The District ' s Project Manager shall have sole responsibility for transmitting instructions , receiving information , and communicating District policies and decisions regarding all matters pertinent to performance of the Project , and may approve minor deviations in the Project that do not affect the District cost-share or Completion Date or otherwise significantly modify the terms of the Agreement . 10 . PROGRESS REPORTS AND PERFORMANCE MONITORING ( a) Progress Reports. Recipient shall provide to the District Project update/status reports as provided in the Statement of Work . Reports will provide detail on progress of the Project and outline any potential issues affecting completion or the overall schedule. Reports nnay be submitted in any form agreed to by District ' s Project Manager and Recipient , and may include emails , memos , and letters . Page 4 Contract #27199 Encumbrance # 5005605 (b) Performance Monitoring. For as long as the Project is operational , the District shall have the right to inspect the operation of the Project during nonnal business hours upon reasonable prior notice . Recipient shall make available to the District any data that is requested pertaining to performance of the Project . 11 . FAILURE TO COMPLETE PROJECT . (a) Should Recipient fail to complete the Project, Recipient shall refund to the District all of the funds provided to Recipient pursuant to this Agreement . However, the District, in its sole judgment and discretion , may determine that Recipient has failed to complete the Project due to circumstances that are beyond Recipient ' s control , or due to a good faith detennination that the Project is no longer environmentally or economically feasible . In such event , the District may excuse Recipient from the obligation to return funds provided hereunder. If the Project has not been completed within 30 days after the Completion Date, Recipient shall provide the District with notice regarding its intention as to completion of the Project . The parties shall discuss the status of the Project and may mutually agree to revise the Completion Date or the scope of the Project . Failure to complete the Project within 90 days after the Completion Date shall be deemed to constitute failure to complete the Project for the purposes of this provision . ( b ) hn the event the Project constitutes a portion of the total functional project , this paragraph shall apply in the event the total functional project is not completed . In such event , the 90 -day timeframe provided herein shall commence upon the date scheduled for completion of the total functional project at the time of execution of this Agreement , unless extended by mutual agreement of the parties . ( c ) This paragraph shall survive the termination or expiration of this Agreement . 12 . TERMINATION ( a) Termination for Default. If Recipient materially fails to fulfill its obligations under this Agreement , including any specific milestones established herein, the District shall provide Recipient written notice of the deficiency by forwarding a Notice to Cure, citing the specific nature of the breach . Recipient shall have thirty ( 30) days to cure the breach . If Recipient fails to cure the breach within the thirty (30) day period , the District shall issue a Termination for Default Notice and this Agreement shall be terminated upon receipt of said notice . In such event , Recipient shall refund to the District all funds provided to Recipient pursuant to this Agreement within thirty ( 30) days of such termination. The District may also terminate this Agreement upon ten ( 10 ) days written notice in the event any of material misrepresentations in the Project Proposal . (b) Termination for Convenience. The District may terminate this Agreement at any time for convenience upon thirty ( 30) calendar days prior written notice to Recipient . Upon receipt of notice, Recipient shall place no further orders for materials , equipment, services , or facilities , for which reimbursement would otherwise be sought . Recipient shall also make every reasonable effort to cancel , upon terns satisfactory to the District , all orders or subcontracts related to the Project for which reimbursement would otherwise be sought . In the event of such termination, Recipient shall be compensated for all work performed pursuant to this Agreement prior to the effective date of termination . Page 5 Contract # 27199 Encumbrance # S005605 ADDITIONAL PROVISIONS ( Alphabetical) 13 . ASSIGNMENT . Recipient shall not assign this Agreement , or any monies due hereunder, without the District ' s prior written consent . Recipient is solely responsible for fulfilling all work elements in any contracts awarded by Recipient and payment of all monies due . No provision of this Agreement shall create a contractual relationship between the District and any of Recipient ' s contractors or subcontractors . 14 . AUDIT ; ACCESS TO RECORDS ; REPAYMENT OF FUNDS . (a) Maintenance of Records. Recipient shall maintain its books and records for the purpose of audit in accordance with the requirements of Attachment _C_, National Estuary Grant Program Requirements . (b) Repayment of Funds. District funding shall be subject to repayment after expiration of this Agreement if, upon audit examination, the District finds any of the following : ( 1 ) Recipient has spent funds for purposes other than as provided for herein; ( 2 ) Recipient has failed to perform a continuing obligation of this Agreement ; (3 ) Recipient has received duplicate funds from the District for the same purpose; and/or (4) Recipient has received more than one hundred percent ( 100%) contributions through cumulative public agency cost-share funding . 15 . CIVIL RIGHTS . Pursuant to chapter 760 , Fla . Stat . , Recipient shall not discriminate against any employee or applicant for employment because of race, color, religion , sex , or national origin, age, handicap , or marital status . 16 . DISPUTE RESOLUTION . Recipient is under a duty to seek clarification and resolution of any I ssue, discrepancy, or dispute involving performance of this Agreement by submitting a written statement to the District ' s Project Manager no later than ten ( 10) business days after the precipitating event . If not resolved by the Project Manager, the Project Manager shall forward the request to the District ' s Office of General Counsel , which shall issue a written decision within ten ( 10 ) business days of receipt . This determination shall constitute final action of the District and shall then be subject to judicial review upon completion of the Project . IT DIVERSITY REPORTING . The District is committed to the opportunity for diversity in the performance of all cost- sharing agreements , and encourages Reci mpient to make a good faith effort to ensure that women and minority-owned business enterprises ( W/MBE) are given the opportunity for maximum participation as contractors . The District will assist Recipient by sharing information on W/MBEs . Recipient shall provide with each invoice a report describing : ( 1 ) the company names for all W/MBEs ; ( 2) the type of minority, and (3 ) the amounts spent with each during the invoicing period . The report will also denote if there were no W/ MBE expenditures . 18 . FEDERAL FUNDING REQUIREMENTS . This Agreement is funded , in whole or in part , with funds received by the District from the United States Enviromnental Protection Agency under the National Estuary Program for the Indian River Lagoon ( CFDA No . 66 . 456 ) , under the authority of section 320 of the Clean Water Act , 33 U . S . C . § 1251 , et seq . , and 40 C . F . R . Part 31 and 40 C . F . R . Part 35 , Subpart P . The amount of federal funds provided under this Agreement is $ 11 , 349 . Recipient , as a sub - grantee of these federal funds , must comply with the provisions of Attachment C . Page 6 Contract #27199 Encumbrance # S005605 19 . FLORIDA SINGLE AUDIT ACT ( a) Applicability. The Florida Single Audit Act (FSAA) , section 215 . 97 , Fla . Stat . , applies to all sub-recipients of state financial assistance , as defined in section 215 . 97 ( 1 ) ( q) , Fla . Stat . , awarded by the District through a project or program that is funded, in whole or in part , through state financial assistance to the District. In the event Recipient expends a total amount of state financial assistance equal to or in excess of $ 500 , 000 in any fiscal year of such Recipient , Recipient must have a state single or project- specific audit for such fiscal year in accordance with section 215 . 97 , Fla . Stat . ; applicable rules of the Department of Financial Services ; and Chapters 10 . 550 ( local governmental entities) or 10 . 650 (nonprofit and for-profit organizations) , Rules of the Auditor General . In determining the state financial assistance expended in its fiscal year, Recipient shall consider all sources of state financial assistance, including state financial assistance received from the District , other state agencies , and other non-state entities . State financial assistance does not include Federal direct or pass-through awards and resources received by a non - state entity for Federal program matching requirements . Recipient is solely responsible for complying with the FSAA . If Recipient expends less than $ 500 ,000 in state financial assistance in its fiscal year, an audit conducted in accordance with the provisions of section 215 . 97 , Fla . Stat . , is not required . In such event , should Recipient elect to have an audit conducted in accordance with section 215 . 97 , Fla . Stat . , the cost of the audit must be paid from the non - state entity ' s resources ( i . e . , Recipient ' s resources obtained from other than State entities ) . ( b) Program Information . This Agreement involves the disbursement of state funding by the Department of Highway Safety and Motor Vehicles in the amount of $ 44 , 446 . Funding is provided under the State of Florida hldian River Lagoon License Plate Program_The Florida Catalog of Financial Assistance ( CSFA ) number for this program is CFSA No . 76 . 010 . ( c ) Additional Information. For information regarding the state program under the above CSFA number , Recipient should access the Florida Single Audit Act website located at https • //apps fldfs com/fsaa/catalo � . aspx for assistance . The following websites may be accessed for additional information : Legislature' s Website at http : //www . le �,Y . state , fl . us/ , State of Florida ' s website at http : //myflorida . com, District of Financial Services ' Website at http • //www . fldfs . com/ and the Auditor General 's Website at http : //www . myflorida . coiii/aud �en/ . ( d ) Allowable Costs . Recipient may only charge allowable costs to this Agreement , as otherwise provided herein . Any balance of unobligated cash that have been advanced or paid that is not authorized to be retained for direct program costs in a subsequent period must be returned to the District . ( e ) Audit Requirements . Recipient shall ensure that the audit complies with the requirements of section 215 . 97 ( 7) , Fla . Stat . This includes submission of a financial reporting package as defined by section 215 . 97 (2) , Fla . Stat . , and Chapters 10 . 550 (local governmental entities) or 10 . 650 (nonprofit and for-profit organizations) , Rules of the Auditor General . Recipient shall comply with the program requirements described in the Florida Catalog of State Financial Assistance ( CSFA) [https : //apps . fldfs . com/fsaa/catalog . aspx] . The services/purposes for which the funds are to be used are included in the Statement of Work. Page 7 Contract #27199 Encumbrance # S005605 (f) Financial Reporting. Recipient shall provide the District with a copy of any reports , management letters , or other information required to be submitted in accordance with Chapters 10 . 550 (local governmental entities) or 10 . 650 (nonprofit and for-profit organizations) , Rules of the Auditor General , as applicable , no more than 20 days after its preparation . Recipient shall indicate the date the reporting package was delivered to Recipient in correspondence accompanying the reporting package . This information shall be directed to : St . Johns River Water Management District , Mr. Greg Rockwell , Director, Division of Financial Management , 4049 Reid Street , Palatka , FL 32177 . A copy of the report shall also be provided to the Auditor General ' s Office at the following address : State of Florida Auditor General , Room 401 , Claude Pepper Building, 111 West Madison Street , Tallahassee, Florida 32399 - 1450 . (g) Monitoring. In addition to reviews of audits conducted in accordance with section 215 . 97 , Fla . Stat . , as revised , monitoring procedures may include, but not be limited to , on- site visits by District staff, limited scope audits , and/or other procedures . Recipient agrees to comply and cooperate with any monitoring procedures/processes deemed appropriate by the District . In the event the District determines that a limited scope audit of Recipient is appropriate , Recipient agrees to comply with any additional instructions provided by the District to Recipient regarding such audit . Recipient agrees to comply and cooperate with any inspections , reviews , investigations , or audits deemed necessary by the District ' s Inspector General or the state Chief Financial Officer or Auditor General . ( h) Examination of Records . In addition to the District ' s audit rights otherwise provided for herein, Recipient shall permit the District or its designated agent , the state awarding agency , the Department of Financial Services , the state ' s Chief Financial Officer and the state ' s Auditor General to examine Recipient ' s financial and non-financial records to the extent necessary to monitor Recipient ' s use of state financial assistance and to determine whether timely and appropriate corrective actions have been taken with respect to audit findings and recommendations , which may include onsite visits and limited scope audits . 20 . GOVERNING LAW, VENUE , ATTORNEY ' S FEES , WAIVER OF RIGHT TO JURY TRIAL . This Agreement shall be construed according to the laws of Florida and shall not be construed more strictly against one party than against the other because it may have been drafted by one of the parties . As used herein , " shall " is always mandatory . In the event of any legal proceedings arising from or related to this Agreement : ( 1 ) venue for any state or federal legal proceedings shall be in Orange County ; (2 ) each party shall bear its own attorney ' s fees , including appeals ; ( 3 ) for civil proceedings , the parties hereby consent to trial by the court and waive the right to jury trial . 21 . INDEPENDENT ENTITIES . The parties to this Agreement , their employees and agents , are independent entities and not employees or agents of each other . Nothing in this Agreement shall be interpreted to establish any relationship other than that of independent entities during and after the teen of this Agreement . Recipient is not a contractor of the District . The District is providing cost- share funding as a cooperating governmental entity to assist Recipient in accomplishing the Project . Recipient is solely responsible for accomplishing the Project and directs the means and methods by which the Project is accomplished . Recipient is solely responsible for compliance with all labor and tax laws pertaining to Recipient , its officers , agents , and employees . Page 8 Contract #27199 Encumbrance # S005605 22 . INTEREST OF RECIPIENT . Recipient certifies that no officer, agent , or employee of the District has any material interest , as defined in chapter 112 , Fla . Stat . , either directly or indirectly , in the business of Recipient to be conducted hereby , and that no such person shall have any such interest at any time during the term of this Agreement . 23 . NON-LOBBYING . Pursuant to section 216 . 347, Fla . Stat . , as amended, Recipient agrees that funds received from the District under this Agreement shall not be used for the purpose of lobbying the Legislature or any other state agency . 24 . PERMITS . Recipient shall comply with all applicable federal , state and local laws and regulations in implementing the Project and shall include this requirement in all subcontracts pertaining to the Project . Recipient shall obtain any and all governmental permits necessary to implement the Project . Any activity not properly permitted prior to implementation or completed without proper pen-nits does not comply with this Agreement and shall not be approved for cost - share funding . 25 . PUBLIC ENTITY CRIME . A person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid , proposal , or reply on a contract to provide any goods or services to a public entity; may not submit a bid , proposal , or reply on a contract with a public entity for the construction or repair of a public building or public work ; may not submit bids , proposals , or replies on leases of real property to a public entity ; may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity ; and may not transact business with any public entity in excess of the threshold amount provided in s . 287 . 017 for CATEGORY TWO ($ 35 , 000) for a period of 36 months following the date of being placed on the convicted vendor list . 6 . PUBLIC RECORDS . Records of Recipient that are made or recei 2ved in the course of performance of the Project may be public records that are subject to the requirements of chapter 119 , Fla , Stat , If Recipient receives a public records request , Recipient shall promptly notify the District ' s Project Manager . Each party reserves the right to cancel this Agreement for refusal by the other party to allow public access to all documents , papers , letters , or other material related hereto and subject to the provisions of chapter 119 , Fla . Stat . , as amended . 27 . ROYALTIES AND PATENTS . Recipient certifies that the Project does not, to the best of its I nformation and belief, infringe on any patent rights . Recipient shall pay all royalties and patent and license fees necessary for performance of the Project and shall defend all suits or claims for I nfringement of any patent rights and save and hold the District harmless from loss to the extent allowed by Florida law . IN WITNESS WHEREOF , the St . Johns River Water Management District has caused this Agreement to be executed on the day and year written below in its name by its Executive Director, and Recipient has caused this Agreement to be executed on the day and year written below in its name by its duly authorized representatives , and, if appropriate, has caused the seal of Page 9 Contract #27199 Encumbrance #5005605 the corporation to be attached . This Agreement may be executed in separate counterparts , which shall not affect its validity . Upon execution, this Agreement constitutes the entire agreement of the parties , notwithstanding any stipulations , representations , agreements , or promises , oral or otherwise, not printed or inserted herein . This Agreement cannot be changed by any means other than written amen ment�,.o.rrugr.., •.• r,0 MISS/ ••.. referencing this Agreement and signed by all parties . •�y, . • • �y '•, ST . JOHNS RIVER WATER INDIAN RIVER COUNTY a MANAGEMENT DISTRICT _ • :aQ: By : JN' ByV O .rYYgYY .Y •� Kirby B . Green 111 , Executi e Director Bob Solari , Chainnan Date : i Date : November 1 , 2011 APPROVED BY THE OFFICE APPROVED AS TO FORM AND LEGAL OF GENERAL COUNSEL SUFFICIENCY S anle J . Nie r Sr. ssistan eneral Counsel William K . Debraal , Deputy County Attorney ATTACHMENTS Attachment A - Statement of Work Attachment B - Contract Payment Requirements for State-Funded Cost Reimbursement Contracts Attachment C - National Estuary Program Grant Requirements Page 10 Contract #27199 Encumbrance # S005605 ATTACHMENT A — STATEMENT OF WORK Indian River County Pollution Control (PC) South Phase 1 Algal Turf Scrubber System I . INTRODUCTION The South Relief Canal of the Indian River Farms Water Control District (1RFWCD ) provides drainage for a 12 , 500 -acre basin composed of a mix of developed industrial , residential , connnercial , and agricultural land . The nutrient-rich flow through the canal to the Indian River Lagoon averages 26 million gallons per day (MGD ) . Indian River County has proposed development of the Indian River County Pollution Control (PC) South Phase 1 Algal Turf Scrubber System ( ATS ) to treat 10 million gallons per day of this polluted water in an effort to reduce pollution to the Indian River Lagoon . The ATS will remove dissolved nitrogen and phosphorus from the canal water and a polishing pond/wetland system included in the treatment train downstream of the ATS will remove remaining solid particles from the treated water. In addition, the undeveloped land surrounding the ATS will be fenced and converted into a gopher tortoise preserve . Assuming a 6 -month dry period and a 6 -month rainy period , the projected nutrient removal ranges by the ATS are: 1 , 830 to 3 , 280 dry pounds/year of total phosphorus , and 8 , 190 to 14 ,400 dry pounds/year of total nitrogen . This represents 915 to 1 , 640 forty-pound bags of 10 - 15 - 10 (N -P - K) fertilizer with respect to total phosphorus and 2 , 048 to 3 , 600 bags of fertilizer with respect to total nitrogen. These quantities do not include the total nitrogen and total phosphorus that the ATS will remove from the RO reject water . A related project component required under a consent decree with FDEP and Indian River County Utilities is outside the scope of this cooperative funding agreement . The related component consists of design of a pumping station located at the South RO Water Treatment plant to pump reject water into the ATS influent structure where it will mix and blend with the canal water. The project design will allow up to 1 . 5 million gallons per day of reject water to be pumped to PC South ' s ATS for treatment and dilution . Future plans include a system to disinfect treated canal water and place it into a new County reuse water system . The treated water not used in the irrigation reuse system will be returned to the South Relief Canal where it will continue its journey to the Indian River Lagoon . II . OBJECTIVES The project objective is the final engineering design, construction plans , and permits for the ATS . III . SCOPE Indian River County ( County) will utilize staff and subcontractors to design and permit the ATS . A ten million gallon per day duplex pumping station will be designed inside the South Relief Canal right-of- way . The pumps will be either above ground pumps enclosed inside a small -prefabricated building or submersible wastewater type pumps . The pumps will be capable of pumping solids up to three-inches in diameter . Preceding the pumps will be a Duperon self-cleaning F1exRake with one-inch openings . Thus , all solids one- inch and larger will be removed from the canal water prior to entering the pump station . The captured solids will be disposed of at the County landfill or an energy conversion facility . In addition , the overall project design will allow up to 1 . 5 million gallons per day of reject water to be pumped to PC South ' s ATS for treatment and dilution . The design of the RO water treatment pump Page 11 Contract #27199 Encumbrance # S005605 station is not included in this statement of work and will be paid 100 % by County in compliance with the consent decree with FDEP . PC South ' s ATS design will be approximately 4 . 4 acres and will consist of a large , gently sloped concrete surface that is overlaid with a rough grid- like material . Nutrient rich waters are discharged onto the surface and an algal turf is cultured . The algae grows naturally and eventually a dominate species will predominate the ATS surface . Living within the algae is a multitude of small invertebrates, insects , microbes , and other organisms that feed off the algae and the organic material present in the canal water. The ATS ' s living surface is a complex miniature ecosystem . As the algal turf grows , it forms dense mats over the surface and it is very effective at removing dissolved nitrogen and phosphorus . It also removes to a smaller extent a variety of other pollutants found in the canal water and some color. The treated water collects in a concrete trough at the bottom of the sloped ATS surface . Once the County constructs the project ( not part of this scope) , algae must be harvested to remove the collected nutrients from the treatment system and to avoid conversion of the algae mat to less desirable forms of algae. During the warmer months , one-half of the ATS surface will be harvested each week, which equates to biweekly harvesting for the total system . Algal production decreases during colder months , requiring harvesting only every three to four weeks . Harvesting will be accomplished by scraping the ATS surface with a special blade mounted to the front of a small tractor. The scraping dislodges the algal turf, which is washed into a collection trough where it is removed at a centralized harvesting station by a Duperon self-cleaning FlexRake with one-quarter inch openings . The captured algal mass drops onto an asphalt pad where it will be loaded into a dump truck for transport to Egret Marsh Stormwater Park where it will be composted or perhaps converted into methane gas for power generation . IV . TASK IDENTIFICATION Task 1 . All effort necessary to complete the engineering design and permitting for the ATS . The County will oversee the project design by staff and consulting engineer( s ) . The design of the RO water treatment pump station is not included in this SOW and will be paid 100% by County in compliance with the consent decree with FDEP . V . TIME FRAMES and DELIVERABLES All Deliverables shall be sent to the District office located at : 525 Community College Parkway South East Palm Bay , Florida 32909 Deliverables shall be addressed to the attention of: Frank Sakuma , Project Manager. Task 1 : Engineering Designs and Permitting Task 1 Deliverable due in District offices by September 15 , 2012 . Major Project Design ATS Pilot Plant data will be developed by a subcontract with Hydromentia , Inc . Facility Design and Permitting by Indian River County with assistance from subcontractors : Hydrotnentia , Inc . ; electrical/control engineering design subcontractor; structural engineering design subcontractor; and geotechnical engineering design subcontractor . Page 12 Contract #27199 Encumbrance # 5005605 The County shall also ensure receipt of all applicable pen-nits : SJRWMD Environmental Resource Permit; U . S . Army Corps of Engineers Dredge and Fill Permit ; Indian River County Site Plan; hidian River County Stormwater Permit ; and Miscellaneous permits from Indian River Farms Water Control District Deliyerahle: Copy of engineer certified ATS Pilot Plant design , hid- ready construction plans and permits. VI . BUDGET Task Line Task CWA Section IRL License Cost Share Cost Share Item Description 320 Funds Plate Funds Funding Funding Total Amount Source Engineering Indian River 1 Design and $ 117349 $44 , 446 $ 1449205 County $2009000 Permitting County shall submit one invoice upon completion of the design and permitting phase of this project and shall include documentation of in - kind contributions . Once the construction phase is complete , the County shall submit documentation to verify project completion . Page 13 Contract #27199 Encumbrance # S005605 ATTACHMENT B CONTRACT PAYMENT REQUIREMENTS FOR STATE- FUNDED COST REIMBURSEMENT CONTRACTS Invoices for state-funded cost reimbursement contracts must be supported by an itemized listing of expenditures by category ( salary, travel , expenses , etc .) . Supporting documentation must be provided for each amount for which reimbursement is being claimed , indicating that the item has been paid . Check numbers may be provided in lieu of copies of actual checks . Each piece of documentation shall clearly reflect the dates of service . Only expenditures for categories in the approved contract budget will be reimbursed . Listed below are examples of the types of documentation representing the minimum requirements by cost category : Salaries : Submit a payroll register or similar documentation showing gross salary charges , fringe benefits , other deductions , and net pay . If an individual is paid by the hour, a document reflecting the hours worked times the rate of pay is acceptable . Fringe Benefits : Fringe benefits should be supported by invoices showing the amount paid on behalf of the employee ( e . g. , insurance premiums paid ) . If the contract specifically states that fringe benefits will be based on a specified percentage, rather than the actual cost of fringe benefits , then the calculation for the fringe benefits amount must be shown . Exception : Governmental entities are not required to provide check numbers or copies of checks for fringe benefits . Travel : Reimbursement for travel must be in accordance with section 112 . 061 , Florida Statutes , which includes submission of the claim on the approved State of Florida ( State) or District travel voucher. Other direct costs : Reimbursement is based upon paid invoices/receipts . If nonexpendable property is purchased using State funds , the contract should include a provision for the transfer of the property to the State when services are terminated . Documentation must be provided to show compliance with Department of Management Services Rule 60A- 1 . 017 , Florida Administrative Code , regarding the requirements for contracts which include services and that provide for the contractor to purchase tangible personal property as defined in section 273 . 02 , Florida Statutes , for subsequent transfer to the State. In -house charges : Charges which may be of an internal nature ( e . g . , postage, copies , etc . ) may be reimbursed on a usage log which shows the units times the rate being charged . The rates must be reasonable . Indirect costs : If the contract specifies that indirect costs will be paid based on a specified rate , then the calculation should be shown. The " Reference Guide for State Expenditures" prepared by the Florida Department of Financial Services can be found at this web address : http : //www . fldfs . coiiVaadir/refcrence guide .htm Page 14 ATTACHMENT C (Last revised : 942 -08) NATIONAL ESTUARY PROGRAM GRANT REQUIREMENTS Catalog of Federal Domestic Assistance (CFDA) No. 66 .456 This Agreement is funded , in whole or in part, with funds received by the St . Johns River Water Management District ( " District") from the United States Environmental Protection Agency ("USEPA" ) under the National Estuary Program for the Indian River Lagoon ( CFDA No . 66 .456) , under the authority of section 320 of the Clean Water Act, 33 U . S . C . § 1251 , et seq . , and 40 CFR Part 31 and 40 CFR Part 35 , Subpart P . As a sub -grantee under the aforesaid federal grant , Recipient , in the performance of its activities pursuant to this Agreement , must comply with the provisions of 40 C .F . R Part 31 and the specific requirements of the contract award between USEPA and the District , as described below . Recipient may access information regarding the Catalog of Federal Domestic Assistance ( CFDA) via the internet at http : // 12 . 46 . 245 . 173 /cfda/cfda . html . L INVOICING In addition to the invoicing requirements contained in the body of this Agreement, the District may periodically request proof of a transaction ( invoice , payroll register, etc . ) to evaluate the appropriateness of costs pursuant to state and federal guidelines ( including cost allocation guidelines ) , as appropriate . When requested, this information must be provided within 30 calendar days of request . Recipient may also be required to submit a cost allocation plan to the District in support of its multipliers ( overhead , indirect, general administrative costs , and fringe benefits ) . Allowable costs for Federal Programs can be found under 48 CFR Part 31 at http : //www . access . gpo . Dov/nara/cfr/cfr-table-search . html and OMB Circulars A - 87 , A - 122 , A - 21 , A - 102 and A - 110 at http : //www . whitehouse . gov/ol-nb/circulars/index . htmi #numerical . In the event this Agreement involves a cost- share or match by Recipient, Recipient shall meet the federal cost-share requirements established in 48 CFR, Part 31 and OMB Circulars A - 87 , A - 122 and A -21 . For purposes of this Agreement, the following cost principles are incorporated by reference . Organization Type Applicable Cost Principles State , local or Indian tribal government . OMB Circular A- 87 Private non -profit organization other than ( 1 ) OMB Circular A- 122 an institution of higher education , ( 2 ) hospital , or ( 3 ) organization named in OMB Circular A - 122 as not subject to that circular . Education Institutions OMB Circular A-21 For-profit organization other than a hospital 48 CFR Part 31 , Contract Cost Principles and an organization named in OMB A - 122 and Procedures , or uniform cost as not subject to that circular. accounting standards that comply with cost principles acceptable to the federal agency , I II . QUARTERLY REPORTS As a minimum reporting requirement , Recipient shall submit quarterly progress reports , which shall describe the work performed, problems encountered, problem resolution, schedule updates and proposed work for the next reporting period . Quarterly reports shall be submitted to the District ' s Project Manager no later than twenty (20) days following the completion of the quarterly reporting period. The teen "quarterly" shall reflect the calendar quarters ending March 31 , June 30 , September 30 and December 31 . In the event the body of this agreement contains additional and/or more frequent reporting requirements , the body of this Agreement shall prevail . III. FEDERAL SINGLE AUDIT ACT REQUIREMENTS A . If the recipient is a State or local government or a non -profit organization as defined in OMB Circular A- 133 , as revised, Recipient shall comply with the following provisions . 1 . If Recipient expends $ 500 ,000 or more in Federal awards in its fiscal year, Recipient must have a single or program-specific audit conducted in accordance with the provisions of OMB Circular A - 133 , as revised . The body of this Agreement indicates the amount of Federal funds awarded through the District by this Agreement. In determining the Federal awards expended in its fiscal year, Recipient shall consider all sources of Federal awards , including all Federal resources received from the District . The determination of amounts of Federal awards expended should be in accordance with the guidelines established by OMB Circular A - 133 , as revised . Recipient shall fulfill the requirements relative to auditee responsibilities as provided in Subpart C of OMB Circular A- 133 , as revised . An audit of Recipient conducted by the Auditor General in accordance with the provisions of OMB Circular A- 133 , as revised, will meet the requirements of this part . 2 . If the recipient expends less than $ 500 , 000 in Federal awards in its fiscal year, an audit conducted in accordance with the provisions of OMB Circular A - 133 , as revised, is not required . If Recipient nevertheless elects to have an audit conducted in accordance with the provisions of OMB Circular A - 133 , as revised, the cost of the audit must be paid from Recipient resources obtained from other than Federal entities . 3 . Copies of reporting packages for audits conducted pursuant to this section , shall be submitted, by or on behalf of Recipient , directly to each of the following : ( a) To the District at : St. Johns River Water Management District Mr . Greg Rockwell Director, Division of Financial Management 4049 Reid Street Palatka , FL 32177 (b) When required by section . 320 (d) , OMB Circular A- 133 , as revised, the Federal Audit Clearinghouse [the number of copies required by sections . 320 (d) ( 1 ) and ( 2)] at the following address : 2 Federal Audit Clearinghouse Bureau of the Census 1201 East 10`" Street Jefferson , IN 47132 ( c ) Other Federal agencies and pass -through entities in accordance with sections . 320 (c ) and ( f) , OMB Circular A - 133 , as revised. 4 . Pursuant to section . 320 (f) , OMB Circular A - 1 33 , as revised, Recipient shall submit a copy of the reporting package described in section . 320(c) and any management letters issued by the auditor to the District at the address stated above . B . Any reports , management letters , or other information required to be submitted to the District shall be submitted timely in accordance with OMB Circular A - 133 , Florida Statutes , or Chapters 10 . 550 ( local governmental entities) or 10 . 650 ( nonprofit and for - profit organizations) , Rules of the Auditor General, as applicable. Submittals should indicate the date the reporting package was delivered to Recipient in correspondence accompanying the reporting package . C Recipient is hereby advised that the Federal Single Audit Act Requirements may further apply to lower tier transactions that may be a result of this Agreement . For federal financial assistance , Recipient shall utilize the guidance provided under OMB Circular A - 133 , Subpart B , section . 210 for determining whether the relationship represents that of a sub-recipient or vendor and http : //www . whitehouse . gov/omb/circulars/al 33 /a I 33 . htmi . Recipient should confer with its chief financial officer, audit director or contact the District for assistance with questions pertaining to the applicability of these requirements . D . If Recipient is exempt from the Federal Single Audit Act (including for -profit corporations , federal agencies , and private individuals ) , Recipient is hereby advised that the Federal Single Audit Act requirements may apply to lower tier transactions that may be a result of this Agreement . The CFDA applicable to this Agreement is 66 .456 , entitled "National Estuary Program . " Recipient shall utilize the guidance provided under OMB Circular A - 133 , Subpart B , Section . 210 for determining whether the relationship represents that of a sub -recipient or vendor and http • //www . whitchousc . gov/omb/circulars/al33/a ] 33 . html6 if a sub-recipient relationship is identified , Recipient must include appropriate language in its agreement to alert the sub-recipient of its single audit responsibilities . The document entitled "FSAA Standard Contract Language" can be found under the "Links/ Forms" section appearing at the following website and is recommended for use in sub -grants resulting from this Agreement . https : //apps . fldfs . com/fsaa/catalog . aspx Iv . MONITORING In addition to reviews of audits conducted in accordance with OMB Circular A - 133 , as revised , monitoring procedures may include , but not be limited to , on -site visits by District staff, limited scope audits as defined by OMB Circular A - 133 , as revised, and/or other procedures . By 3 entering into this Agreement, Recipient agrees to comply and cooperate with any monitoring procedures/processes deemed appropriate by the District . In the event the District determines that a limited scope audit of Recipient is appropriate, Recipient agrees to comply with any additional instructions provided by the District regarding such audit. V . RECORDS A. Recipient shall maintain books , records and documents directly pertinent to performance under this Agreement and demonstrating compliance herewith in accordance with generally accepted accounting principles consistently applied. The District, the USEPA, or their authorized representatives shall have access to such records for audit purposes during the tern of this Agreement and for three years following completion . Records for real property and equipment acquired with federal funds shall be retained for five years following final disposition . In the event any work is subgranted or subcontracted, Recipient shall similarly require each subgrantee and subcontractor to maintain and allow access to such records for audit purposes . If any litigation, claim, or audit is started before the expiration of the record retention period established above , the records shall be retained until all litigation , claims or audit findings involving the records have been resolved and final action taken. B . In the event an audit report is issued, Recipient shall maintain such records for a period of five ( 5 ) years from the date the audit report is issued, and shall allow the District, or its designee , access to such records upon request. Recipient shall ensure that audit working papers are made available to the District , or its designee , upon request for a period of three ( 3) years from the date the audit report is issued, unless extended in writing by the District . VI . DISCRIMINATION A. No person, on the grounds of race, creed , color, national origin, age , sex, or disability, shall be excluded from participation in , be denied the proceeds or benefits of, or be otherwise subjected to discrimination in performance of this Agreement . B . An entity or affiliate who has been placed on the discriminatoiy vendor list may not submit a bid ou a contract to provide goods or services to a public entity , may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to a public entity, may not award or perform work as a contractor , supplier, subcontractor, or consultant under contract with any public entity , and may not transact business with any public entity . Questions regarding the discriminatory vendor list may be directed to the Florida District of Management Services , Office of Supplier Diversity, at 850/487 -0915 . VII. DIVERSITY A . The District supports diversity in its procurement program and requests that all subcontracting opportunities afforded by this Agreement embrace diversity enthusiastically . The award of subcontracts should reflect the full diversity of the citizens of the State of Florida . A list of Minority Owned firms that could be offered subcontracting opportunities may be obtained by contacting the Office of Supplier Diversity at ( 850) 487 -0915 . 4 B . Recipient shall not discriminate on the basis of race , color, national origin, or sex in the performance of this Agreement. Recipient shall carry out applicable requirements of 40 CFR Part 33 ( Attachment A) in the award and administration of contracts awarded under EPA financial assistance agreements . Recipient is advised to review the " Good Faith Efforts " at 40 CFR Subpart C with regard to the procurement of construction , equipment, services and supplies with funds that have been provided to Recipient pursuant to this Agreement. Failure by Recipient to carry out these requirements is a material breach of this Agreement, which may result in the termination of this Agreement or other legally available remedies . VIII . PROCUREMENT Recipient is required to comply with the standards set forth at 40 CFR § 31 . 36 (b) through (i ) and 40 CFR Part 33 in the procurement of goods and services , Attachment B . As indicated at 40 CFR § 31 . 36 ( d) Recipient may utilize small purchase procedures ( price or rate quotations from an adequate number of qualified sources ) for procurement of $ 100 ,000 or less . IX . FEDERAL PARTICIPATION The following language shall be included in all final documents prepared under this Agreement to acknowledge the federal government ' s participation in the project . This project and the preparation of this report (or booklet, pamphlet, etc as appropriate) was funded in part by a National Estuaries Program grant from the USEPA through an agreement with the St . Johns River Water Management District. The total cost of the project was of which $ or percent was provided by the USEPA . X . PROHIBITION AGAINST LOBBYING A . This sub -award is subject to the requirements of 40 CFR Part 34 , Attachment C . If this sub -award exceeds $ 100 ,000 , by acceptance of this sub -award Recipient certifies that : ( 1 ) No Federal appropriated funds have been paid or will be paid , by or on behalf of Recipient , to any person for influencing or attempting to influence an officer or employee of an agency , a Member of Congress , an officer or employee of Congress , or an employee of a Member of Congress , in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan , the entering into any cooperative agreement, and the extension , continuation , renewal , amendment , or modification of any Federal contract , grant, loan , or cooperative agreement . ( 2 ) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of an agency , a Member of Congress , an officer or employee of Congress , or an employee of a Member of Congress , in connection with this Federal sub -award , Recipient shall complete and submit Attachment D , Standard Form-LLL, " Disclosure of Lobbying Activities" in accordance with its instructions , which I nclude tiling quarterly updates of any material changes . 5 ( 3 ) Recipient shall require the language of this certification to be included in the documents for sub -awards in excess of $ 100 , 000 at all tiers (including subcontracts , sub -grants , and contracts under grants , loans , and cooperative agreements) , and that all sub -recipients shall certify and disclose accordingly . B . This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into . Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352 , title 31 , U. S . Code . Any person who fails to file the required certification shall be subject to a civil penalty of not less than $ 10 , 000 and not more than $ 100, 000 for each such failure . XI. DEBARMENT AND SUSPENSION A . In accordance with Executive Order 12549 , Debarment and Suspension , and the requirements of this sub -award contained in 2 CFR Part 180 , Subpart C (Attachment E) ; 2 CFR Part 1532 , and 40 CFR § § 31 . 35 , Recipient agrees and certifies that : ( 1 ) Neither Recipient, nor its principals , is presently debarred, suspended, proposed for debarment, declared ineligible , or voluntarily excluded from participation in this transaction by any Federal District or agency. (2) Recipient shall not knowingly enter into any lower tier contract , or other covered transaction , with a person who is similarly debarred or suspended from participating in this covered transaction, unless authorized in writing by USEPA to the District . Recipient shall pass the requirement to comply with the above- stated provisions to each person with whom Recipient enters into a covered transaction of $25 ,000 or more , as provided in 2 CFR Part 180 , Subpart B , by including the language of this section in all subcontracts or lower tier agreements executed to support Recipient ' s work under this Agreement . (3 ) Recipient shall check the federal Excluded Parties List System , currently at l ttp : //cpls . arnet , gov or littp : //www . epls . ,tiov for those persons who are ineligible to participate in federally funded transactions . XII. HOTEL-MOTEL FIRE SAFETY Pursuant to 40 CFR 30 . 18 , if applicable , and 15 USC 2225a, Recipient agrees to ensure that all space for conferences , meetings , conventions , or training seminars funded in whole or in part with federal funds complies with the protection and control guidelines of the Hotel and Motel Fire Safety Act (PL 101 -391 , as amended) . Recipients may search the Hotel-Motel National Master List at littp : //www . usfa . diis . g_ov/applications/hotel / to see if a property in compliance (FEMA ID is currently not required) , or to find other information about the Act . XIII . COPYRIGHT The USEPA and the District reserve a royalty-free , nonexclusive, and irrevocable license to reproduce, publish or otherwise use , and to authorize others to use , for government purposes : ( 1 ) the copyright in any work developed under a grant, subgrant, or contract under a grant or 6 subgrant, and ( 2 ) any rights of copyright to which a grantee , subgrantee or a contractor purchases ownership with grant support. In the event there is a specific copyright provision in the body of this Agreement, the terms of this provision shall supersede the body of this Agreement to the extent of any conflict. XIV . REAL PROPERTY AND EQUIPMENT A . Land Acquisition . Subject to the obligations and conditions set forth in 40 CFR § 31 . 31 , title to real property acquired hereunder will vest upon acquisition in Recipient. Except as otherwise provided by federal statutes , real property will be used for the originally authorized purposes as long as needed therefor, and Recipient shall not dispose of or encumber its title or other interests therein . When real property is no longer needed for the originally authorized purpose , Recipient will request disposition instructions from the District ' s Project Manager, subject to the requirements of 40 CFR § 31 . 31 ( c ) . This request shall include : ( 1 ) information identifying the property by its official legal description (include the city and county where located) , (2 ) original acquisition cost of the property, ( 3 ) the federal funding source , (4) the total funding amount provided by the federal funding source , ( 5 ) the federal program funding the acquisition ( CFDA No . and Title) , ( 6) the date of acquisition , ( 7 ) the District ' s contract No . , and ( 8 ) the District ' s Project Manager. If Recipient matching funds have been used for the land acquisition , Recipient agrees that these funds shall not be used as match to any other Agreement supported by State or Federal funds . B . Equipment. Subject to the obligations and conditions set forth in 40 CFR § 31 . 32 , title to real property acquired hereunder will vest upon acquisition in Recipient. Disposition of equipment shall be in accordance with 40 CFR § 31 . 32 ( e) . XV. QA/QC REQUIREMENTS If Recipient ' s project involves environmentally related measurements or data generation , Recipient shall develop and implement quality assurance practices consisting of policies , procedures , specifications , standards , and documentation sufficient to produce data of quality adequate to meet project objectives and to minimize loss of data due to out-of-control conditions or malfunctions . If applicable , Recipient shall contact the District ' s Project Manager for further instructions regarding QA/QC requirements . Attachments , A 40 CFR Part 33Participation by Disadvantaged Business Enterprises in United States Environmental Protection Agency Programs B 40 CFR § 31 . 36 (b ) through ( i ) , Procurement C 40 CFR Part 34 , New Restrictions on Lobbying D Standard Form- LLL , "Disclosure of Lobbying Activities " E 2 CFR Part 180 , OMB Guidelines to Agencies on Government-wide Debarment and Suspension ( Non -procurement ) 7 ATTACHMENT A 44 CFR Part 33 Participation by Disadvantaged Business Enterprises in United States Environmental Protection Agency Programs 15918 Federal Register / Vol , 73 , No . 59 / Wednesday , March 26 , 2008 / Rules and Regulations § 33.210 Does an entity certified as an if the Director determines that there was or deceitful statements or MBE or WEE by EPA need to keep EPA good cause , beyond. the control of the representations , or indicates a serious informed of any changes which may affect appellant or challenger , for the late lack of business integrity or honest the entity's certification? Y filing of the appeal or challenge , may be subject to sanctions under ( a ) An entity certified as an MBE or ( d) No specific format is required for §33t105 . WBE by EPA OSDBU must provide EPA an appeal or challenge , However , the OSDBU , every year on the anniversary appeal or challenge must include Subpart C— Good Faith Efforts of the date of its certification , an information and, arguments concerning affidavit sworn to by the entity 's owners why EPA OSDBU ' s MBE or WBE § 33.301 What does this subpart require? before a person who is authorized by A recipient , including one exempted P certification determination should be state law to administer oaths or an reversed . For challenges in which a from applying the fair share objective unsworn declaration executed under third party questions EPA OSDBU ' s requirements by § 33 .417 , is required to penalty of perjury of the laws of the determination to certify an entity as an make the following good faith efforts United States , This affidavit must affirmM$E or WBE under § 33 . 205 or § 33 . 209 , whenever procuring construction , that there have been no changes in the the third party must also send a copy of equipment , EPA financialtservices assistance plies under entity ' s circumstances affecting its the challenge to the entity whose MBE even if it has achieved its fair share ability to meet disadvantaged status , or WBE certification is being evenobjeii it under subpart D of this arty ownership , and/or control requirements questioned. In addition , the Director (a) Ensure DBEs are made aware of of this subpart or any material changes shall request information and arguments contracting o ortunities to the fullest in the information provided in its from that entity as to why EPA OSDBU' s o PP a lication form , Failure to com ly ma extent practicable through outreachIndian T and PP P Y determination to certify the entity as an recruitment activities . For Indidian Tribal , result in the loss of MBE or WBE MBE or WBE should be upheld. State and Local and Government certification An entunder EPA' s asBE anMBE or ( e) The Director makes his/her appeal recipients , this will include placing Y or challenge decision based solely on DBEs on solicitation lists and solicitin WBE by EPA OSDBU must inform EPA the administrative record and does not them whenever they are potential g OSDBU in writing of any change in conduct a hearing . The Director may sources , circumstance affecting the MBE ' s or supplement the record by adding _ (b ) Make information on forthcoming WBE ' s ability to meet disadvantaged relevant information made available by opportunities available to DBEs and status , ownership , and/or control any other source , including the EPA arrange time frames for contracts and requirements of this subpart or any Office of Inspector General; Federal , establish delivery schedules , where the material change in the information State , or local law enforcement requirements permit, in a wev that provided in its application form . The authorities ; an EPA recipient ; or a encourages and facilitates participation MBE or WBE must attach supporting private party . by DBEs in the competitive process , Y describing in detail the ( f) Consistent with Federal law , the This includes , whenever possible , nature of such change . The notice from Director shall make available , upon the posting solicitations for bids or the MBE or WBE must take the form of request of the appellant , challenger or proposals for a minimum of 30 calendar an affidavit sworn to by the applicant the entity affected by the Director ' s days before the bid or proposal closing before a person who is authorized by appeal or challenge decision , any date . State law to administer oaths or of an supplementary information the Director ( c) Consider in the contracting process unsworn declaration executed under receives from any source as described in whether firms competing for large penalty of perjury of the laws of the paragraph (e) of this section . contracts could subcontract with DBEs , United States . The MBE or WBE must (g) Pending the Director ' s appeal or For Indian Tribal , State and local provide the written notification within challenge decision , EPA OSDBU' s MBE Government recipients , this will include 30 calendar days of the occurrence of or WBE certification determination dividing total requirements when the change , remains in effect , The Director does not economically feasible into smaller tasks stay the effect of its MBE or WBE or quantities to permit maximum §33*211challgihat in EPArocesMBE os for appealing certification determination while ha/ she paticipation by DBEs in the WBE certification determination ? is considering an appeal or challenge , competitive process . (a) An entity which has been denied (h ) The Director shall reverse EPA ( d) Encourage contracting with a MBE or WBE certification be EPA OSDBU' s MBE or WBE certification consortium of DBEs when a contract is OSDBU under § 33 . 205 or § 3EPA may determination only if there was a clear too large for one of these firms to handle appeal that denial . A third party may and significant error in the processing of individually . challenge EPA OS. A third determination the certification or if EPA OSDBU failed (e ) Use the services and assistance of n entity as an MBE or WBE to consider a significant material fact the SBA and the Minority Business to certify a under § 33n e it § 33 n M contained within the entity 's Development Agency of the. Department application for MBE or WBE of Commerce . (b) Appeals and challenges must be certification . (f) If the prime contractor awards sent to the Director of OSDBU at ( i ) All decisions under this section are subcontracts , require the prime Environmental Protection Agency , 1200 administratively final . contractor to take the steps in Pennsylvania Avenue , NW . , Mail Code paragraphs (a) through (e) of this 1230T , Washington , DC 20460 . § 33 .212 What conduct is prohibited by section . (c) The appeal or challenge must be this subpart? sent to the Director of OSDBU (Director) An entity that does not meet the § 33.302 Are there any additional contract within 90 days of the date of EPA eligibility criteria of this subpart may administration requirements ? OSDBU' s MBE or WBE certification not attempt to participate as an MBE or (a) A recipient must require its prime determination . The Director may accept WBE in contracts awarded under EPA contractor to pay its subcontractor for an appeal or challenge filed later than financial assistance agreements or be satisfactory performance no more than 90 days after the date of EPA OSDBU's counted as such by an EPA recipient. 30 days from the prime contractor' s MBE or WBE certification determination An entity that submits false , fraudulent , receipt of payment from the recipient, Federal Register / Vol . 73 , No . 59 / Wednesday , March 26 , 2008 / Rules and Regulations 15919 (b) A recipient must be notified in § 33.303 Are there special rules for loans assistance agreement for the benefit of writing by its prime contractor prior to under EPA financial assistance Native Americans , is required to solicit any termination of a DBE subcontractor agreements ? and recruit Indian organizations and for convenience by the prime contractor. A recipient of an EPA financial Indian-owned economic enterprises and. (c) If a DBE subcontractor fails to assistance agreement to capitalize a give them preference in the award complete work under the subcontract revolving loan fund , such as a State process prior to undertaking the six for any reason, the recipient must under the CWSRF or DWSRF or an good faith efforts . If the efforts to solicit require the prime contractor to employ eligible entity under the Brownfields and recruit Indian organizations and the six good faith efforts described in Cleanup Revolving Loan Fund program, Indian - owned economic enterprises is § 33 . 301 if soliciting a replacement must require that borrowers receiving not successful , then the recipient must subcontractor. identified loans comply with the good follow the six good faith efforts . (d) A recipient must require its prime faith efforts described in § 33 . 301 and Native Americans are defined in contractor to employ the six good faith the contract administration ( d)( d) N to include American Indians , efforts described in § 33 . 301 even if the requirements of § 3 . 302 . This provision Eskimos , Aleuts and Native Hawaiians , prime contractor has achieved its fair does not require that such private and share objectives under subpart D of this nonprofit borrowers expend identified Subpart D—Fair Share Objectives part, loan funds in compliance with any (e) A recipient must require its prime other procurement procedures § 336401 What does this subpart require? contractor to provide EPA Form 6100– contained in 40 CFR part 30 , part 31 , or 2—DBE Program Subcontractor part 35 , subpart O , as applicable . A recipient must negotiate with the Participation Form to all of its DBE appropriate EPA award official or his / subcontractors . EPA Form 61004! gives § 33.304 Must a Native American (either as her designee , fair share objectives for a DBE subcontractor the opportunity to an individual , organization, Tribe or Tribal MTBE and WBE participation in describe the work the DBE Government) recipient or prime contractor procurement under the financial follow the six good faith efforts? assistance agreements , subcontractor received from the prime contractor , how much the DBE (a) A Native American ( either as an subcontractor was paid and any other individual , organization , corporation , § 33,402 Are there special rules for loans concerns the DBE subcontractor might Tribe or Tribal Government) recipient or under EPA financial assistance have , for example reasons why the DBE prime contractor must follow the six agreements? subcontractor believes it was terminated good faith efforts only if doing so would A recipient of an EPA financial by the prime contractor. DBE not conflict with existing Tribal or assistance agreement to capitalize subcontractors may send completed Federal law , including but not limited revolving loan funds must either apply copies of EPA Form 6100-2 directly to to the Indian Self-Determination and its own fair share objectives negotiated the appropriate EPA DBE Coordinator . Education Assistance Act (25 L S . C. with EPA under § 33.401 to identified ( f) A recipient must require its prime 450e) , which establishes , among other loans using in a substantially similar contractor to have its DBE things , that any federal contract, arded relevant geographic market, or negotiate subcontractors complete EPA Form subcontract, grant, or subgrant aw 6100-3—DBE Program Subcontractor to Indian organizations or for the benefit separate fair share objectives with Performance Form . A recipient must of Indians , shall require preference in entities receiving identified loans , as then require its prime contractor to the award of subcontracts and subgrants long as such separate objectives are include all completed forms as part of to Indian organizations and to Indian- based on demonstrable evidence of the prime contractor' s bid or proposal owned economic enterprises . availability of MBEs and WBEs in package . (b ) Tribal organizations awarded an accordance with this subpart. If (g) A recipient must require its prime EPA financial assistance agreement have procurements will occur over more than contractor to complete and submit EPA the ability to solicit and recruit. Indian one year , the recipient may choose to Form 6100-4—DBE Program organizations and Indian -owned apply the fair share objective in place Subcontractor Utilization Form as part economic enterprises and give them either for the year in which the of the prime contractor' s bid or proposal preference in the award process prior to identified loan is awarded or for the package . undertaking the six good faith efforts . year in which the procurement action (h) Copies of EPA Form 6100-2-1313E Tribal governments with promulgated occurs. The recipient must specify this Program Subcontractor Participation tribal laws and regulations concerning choice in the financial assistance Form , EPA Form 6100-3—DBE Program the solicitation and recruitment of agreement, or incorporate it by reference Subcontractor Performance Form and Native-owned and other minority therein. EPA Form 6100-4—DBE Program business enterprises , including women- Subcontractor Utilization Form may be owned business enterprises , have the § 33.403 What is a fair share objective? obtained from EPA OSDBU ' s Home Page discretion to utilize these tribal laws A fair share objective is an objective on the Internet or directly from EPA and regulations in lieu of the six good based on the capacity and availability of OSDBU , faith efforts , If the effort to recruit qualified , certified MBEs and WBEs in (f) A recipient must ensure that each Indian organizations and Indian-owned the relevant geographic market for the procurement contract it awards contains economic enterprises is not successful , procurement categories of construction, the term and condition specified in the then the recipient must follow the six equipment , services and supplies Appendix concerning compliance with good faith efforts . All. tribal recipients cmared to the number of all qualified the requirements of this part, A still must retain records documenting entities in the same market for the same recipient must also ensure that this term compliance in accordance; with § 33 . 501 procurement categories , adjusted , as and condition is included in each and must report to EPA on their procurement contract awarded by an accomplishments in accordance with appropriate , to reflect the level of MBE entity receiving an identified loan under § 33 .502 . and WBE participation expected absent a financial assistance agreement to (c) Any recipient , whether or not the effects of discrimination. A fair capitalize a revolving loan fund , Native American , of an EPA financial share objective is not a quota. 15920 Federal Register / Vol . 73 , No . 59 / Wednesday , March 26 , 2008 / Rules and Regulations § 33 ,404 When must a recipient negotiate number of all businesses to derive a extent it can be related to the fair share objectives with EPA? base figure for the relative availability of opportunities for MBEs and WBEs to A recipient must submit its proposed MBEs and WBEs in the market, perform in the program , MBE and WBE fair share objectives and ( 2 ) Data from a Disparity Study. Use ( 3 ) If a recipient attempts to make an supporting documentation to EPA a percentage figure derived from data in adjustment to its base figure to account within 120 days after its acceptance of a valid , applicable disparity study for the continuing effects of past its financial assistance award . EPA must conducted within the preceding ten discrimination ( often called the " but respond in writing to the recipient ' s years comparing the available MBEs and for " factor) or the effects of another submission within 30 days of receipt, WBEs in the relevant geographic market ongoing MBE/WBE program , the either agreeing with the submission or with their actual usage by entities adjustment must be based on providing initial comments for further procuring in the categories of demonstrable evidence that is logically negotiation . Failure to respond within construction , equipment , services , and and directly related to the effect for this time frame may be considered as supplies , which the adjustment is sought. agreement by EPA with the fair share { 3 ) The Objective of Another EPA § 33.406 Maya recipient designate a lead objectives submitted by the recipient . Recipient . A recipient may use , as its agency for fair share objective negotiation MBE and WBE fair share objectives base figure , the fair share objectives of purposes ? must be agreed upon by the recipient another EPA recipient if the recipient. If an Indian Tribal , State or local and EPA before funds may be expended demonstrates that it will use the same , Government has more than one agency for procurement under the recipient ' s or substantially similar , relevant that receives EPA financial assistance , financial assistance agreement. geographic market as the other EPA recipient. (See § 33 . 411 for exemption the agencies within that Government § 33.405 How does a recipient determine from fair share objective negotiations ) , may designate a lead agency to negotiate its fair share objectives ? (4 ) Alternative Methods . Subject to MBE and WBE fair share objectives with ( a) A recipient must determine its fair EPA approval , other methods may be EPA to be used by each of the agencies . share objectives based on demonstrable used to determine a base figure for the Each agency must otherwise negotiate evidence of the number of certified overall objective . Any methodology with EPA separately its own MBE and MBEs and WBEs that are ready , willing , chosen must be based on demonstrable WBE fair share objectives , and able to perform in the relevant evidence of local market conditions and market for each of the four § are o How long remain MBE and ? fair geographic be designed to ultimately attain an share objectives remain in effect? procurement categories (equipment, objective that is rationally related to the Once MBE and WBE fair share construction, services , and supplies ) . relative availability of MBEs and WBEs objectives have been negotiated , they The relevant geographic market is the in the relevantgeographic market . area of solicitation for the procurement C will remain in effect for three fiscal as determined b the recipient. The O Step 2 . After calculating a base years unless there are significant Y P figure , a. recipient must examine the changes to the data supporting the fair market may be a geographic region of a evidence available in its jurisdiction to share objectives . The fact that a State , an entire State , or a multi - State determine what adjustment , if any , is disparity study utilized in negotiating area , Fair share objectives must reflect needed to the base figure in order to fair share objectives has become more the recipient ' s determination of the arrive at the fair share objective . than ten vears old during the three-year level of MBE and WBE participation it ( 1 ) There are many types of evidence would expect absent the effects of that must be considered when adjusting period does not by itself Constitute a discrimination . A recipient may the base figure . These include : significant change requiring renegotiation . combine the four procurement ( i) The current capacity of MBEs and categories into one weighted objective WBEs to perform contract work under § 33.408 Maya recipient use race and/or for MBEs and one weighted objective for EPA financial assistance agreements , as gender conscious measures as part of this WBEs . measured by the volume of work MBEs program ? (b) Step 1 . A recipient must first and WBEs have performed in recent (a) Should the good faith efforts determine a base figure for the relative years ; described in subpart C of this part or availability of MBEs and WBEs , The (ii ) Evidence from disparity studies other race and/ or gender neutral following are examples of approaches conducted anywhere within the measures prove to be inadequate to that a recipient may take , Any recipient' s jurisdiction , to the extent it achieve an established fair share percentage figure derived from one of is not alreadv accounted for in the base objective , race and/ or gender conscious these examples should be considered a figure ; and action (e . g . , apply the subcontracting basis from which a recipient begins (iii ) If the base figure is the objective suggestion in § 33 . 301 ( c) to MBEs and when examining evidence available in of another EPA recipient , it must be WBEs ) is available to a recipient and its its jurisdiction. adjusted for differences in the local prime Contractor to more Close /} ( 1 ) MBE and WBE Directories and market and the recipient ' s contracting achieve the fair share objectives , subject Census Bureau Data . Separately program . to § 33 .409 , Under no circumstances are determine the number of certified MBEs ( 2 ) A recipient may also consider race and/ or gender conscious actions and WBEs that are ready , willing , and available evidence from related fields re u ' red by EPA. able to perform in the relevant that affect the opportunities for MBEs W ) Any use of race and/ or gender geographic market for each procurement and WBEs to form , grow and compete . conscious efforts must not result in the category from a MBE /WBE directory , These include , but are not limited to : selection of an unqualified MBE or such as a bidder' s list, using the Census (f) Statistical disparities in the ability WBE , Bureau ' s County Business Pattern (CBP) of MBEs and WBEs to get the financing , database , determine the number of all bonding and insurance required to § 33.409 Maya recipient use quotas as qualified businesses available in the participate ; and part of this program? market that perform work in the same (ii ) Data on employment, self- A recipient is not permitted to use procurement category . Separately divide employment, education, training and quotas in procurements under EPA ' s 8 % the number of MBEs and WBEs by the union apprenticeship programs , to the or 10 °i° statute . Federal Register / Vol . 73 , No . 59 / Wednesday , March. 26 , 2008 / Rules and Regulations 15921 § 33 ,410 Cana recipient be penalized for objectives will not apply to an Insular ( 3) The procurement on which the failing to meet Its fair share objectives? Area or Indian Tribal Government entity bid or quoted , and when ; and A recipient cannot be penalized , or recipient until three calendar . years after (4) Entity's status as an MBE/WBE or treated by EPA as being in the effective date of this part . non-MBE/WBE4 noncompliance with this subpart , solely Furthermore , in accordance with (c) Exemptions . A recipient of an EPA because its MBE or WBE participation § 33 .411 (c ) , tribal and intertribal At assistance agreement in the does not meet its applicable fair share consortia recipients of program grants amount of $ 250 , 000 or less for any objective , However , EPA may take which can be included in Performance single assistance agreement , or of more remedial action under § 33 , 105 for a Partnership Grants (PPGs) under 40 CFR than one financial assistance agreement recipient's failure to comply with other part 35 , subpart B are not required to with a combined total of 6250 ,000 or provisions of this part, including , but apply the fair share objective less in any one fiscal year , is exempt not limited to , the good faith efforts requirements of this subpart to such from the paragrapb (b) of this section requirements described in subpart C of grants , requirement to create and maintain a bidders list. Also , a recipient under the this part. Subpart E—Recordkeeping and CWSRF , DWSRF , or BCRLF Program. is § 33.411 Who may be exempted from this Reporting not required to apply the paragraph (b) subpart? of this section bidders list requirement (a ) General. A recipient of an EPA § 33.501 What are the recardkeeping of this subpart to an entity receiving an financial assistance agreement in the requirements of this part? identified loan in an amount of , including i A recientin amount. of $ 250 , 000 or less for any (a) P g those $ 250 ,000 or less , or to an entity single assistance agreement, or of more recipients exempted under § 33 . 411 receiving more than one identified loan. than one financial assistance agreement from the requirement to apply the fair with a combined total of $ 250 ,000 or with a combined total of $ 250 , 000 or share objectives , must maintain all less in any one fiscal year . This less in any one fiscal year, is not records documenting its compliance exemption is limited to the paragraph required to apply the fair share objective with the requirements of this part , (b) of this section bidders list including documentation of its , and its requir exemption is limited to the fair share ements of. this subpart requirements of this subpart. This . prime contractors ' , nand faith efforts and data relied upon in formulating its § 33.502 What are the reporting objective requirements of this subpart. (b) Clean Water State Revolving Fund fair share objectives . Such records must requirements of this part? (CI41SRF) Program , Drinking Water State be retained in accordance with MBE and WBE participation must be Revolving Fund (DWSRF) Program , and applicable record retention reported by all recipients , including Brownfields Cleanup Revolving Loan requirements for the recipient' s those recipients exempted under financial assistance agreement . § 33 . 411 from the requirement to apply Fund (BCRLF) Program Identified Loan Recipients. A recipient wader the (b) A recipient of a Continuing the fair share objectives , on EPA Form CWSRF , DWARF , or Bt andRLF Program is Environmental Program Grant or other 5700-52A , Recipients of Continuing not required, Dto apply the fair share annual grant must create and maintain Environmental Program Grants under 40 PP y a bidders list. In addition , a recipient of CFR part 35 , subpart A ; recipients of objective requirements of this subpart n an EPA financial assistance agreement Performance Partnership Grants (PPGs) an entity receiving an identified loan in to capitalize a revolving loan fund also under 40 CFR part 35 , subpart B ; an amount of $250 ,000 or less or to an must require entities receiving General Assistance Program (GAP) entity receiving more than one identified loans to create and maintain grants for tribal governments and identified Loan with a combined total of of the a bidders list if the recipient loan $ 250 ,000 or less in any one fiscal year. P intertribal consortia ; and institutions of is subject to , or chooses to follow , higher education , hospitals and other This exemption is limited to the fair competitive bidding requirements , See share objective requirements of this P g q ( non-profit organizations receiving subpart . e.g. , § 33 . 303 ) . The purpose of a bidders financial assistance agreements under fist is to provide the recipient and 40 CFR part 30 , will report on MBE and (c) Tribal and Intertribal Consortia entities recipients of program grants which can ties receiving identified loans who WBE participation on an annual basis . conduct competitive bidding with as be included in Performance Partnership p g All other financial assistance agreement Grants (PPGs) under 40 CFR Part 35, accurate a database as possible about the recipients , including recipients of Subpart B. Tribal and Intertribal universe of MBE/WBE and non-MBE/ financial assistance agreements consortia recipients of PPG eligible WBE prime and subcontractors , The list capitalizing revolving loan funds , will grants are not required to apply the fair must include all firms that bid or quote report on MBE and WBE participation share objective requirements of this on prime contracts , or bid or quote semiannually . Recipients of financial subpart to those grants . This exemption subcontracts on EPA assisted projects , assistance agreements that capitalize is limited to the fair share objective including both MBE/WBEs and non- revolving loan programs must require requirements of this subpart . MBE/WBEs , The bidders list must only entities receiving identified loans to (d) Technical Assistance Grant (TAG) be kept until the grant project period submit their MBE and WBE Program Recipients. A recipient of a has expired and the recipient is no participation reports on a semiannual longer receiving EPA fundingunder the TAG is not required to apply the fair g g basis to the financial assistance grant. Far entities receiving identified agreement recipient, rather than to EPA. share objective requirements of this tion is loans , the bidders list must only be kept subpart to that grant. This axem P until the project period for the § 33 .503 How does a recipient calculate limited to the fair share .objective identified loan has ended. The MBE and WBE participation for reporting requirements of this subpart. following information must he obtained purposes? § 33.412 Must an Insular Area or Indian from all prime and subcontractors ; (a) General, Only certified MBEs and Tribal Government recipient negotiate fair ( 1 ) Entity ' s name with point of WBEs are to be counted towards MBE/ share objectives? contact WBE participation. Amounts of MBE The requirements in this subpart ( 2) Entity ' s mailing address , telephone and WBE participation are calculated as regarding the negotiation of fair share number , and e-mail address ; a percentage of total financial assistance 15922 Federal Register / Vol , 73 , No . 59 / Wednesday , March 26 , 2008 / Rules and Regulations err a rrrrrr �rr�r agreement project procurement costs , for the purpose of meeting MBE or WBE Subpart M-[Amended] which include the match portion of the objectives , project costs , if any . For recipients of ( 2 ) The MBE or WBE must itself own ■ 13 , The authority citation for part 35 , financial assistance agreements that and operate at least one fully licensed , subpart M , continues to reed as follows : capitalize revolving loan programs , the insured , and operational truck used on total amount is the total procurement the contract. Authority! 4.2 U .S . C. 9617{e ) ; sec . . , E.O . dollars in the amount of. identified loans 12580 , 52 FR 2823 , 3 CFR, 1987 Cempp . Appendix A to Part 33-Term and 193 , equal to the capitalization grant amount. p Condition § 35.4170 [Amended] (b) Ineli iproject I ect costs. If all project costs attributable to MBE and Each procurement contract signed by an WBE participation are not eligible for EPA financial assistance agreement recipient . ■ 14 , Section 35 .4170 (b) is removed and funding under the EPA financial including those for an identified loan under reserved , assistance agreement. the recipient may an EPA financial assistance agreement choose to report the percentage of MBE capitalizing a revolving loan fund . must § 35.4205 [Amended] and WBE participation based on the include the following term and condition: The contractor shall not discriminate on ■ 15 . Section 35 .4205 (8) is removed . total eligible and non -eligible costs of the basis of race , color , national origin or sex theproject . in the performance of this contract. The § 35.4240 [Amended] ( c Joint ventures . For joint ventures , contractor shall carry out applicable MBE and WBE participation consists of requirements of 40 CFR part 33 in the award ■ 16 . Section 35 . 4240(e) is removed and the portion of the dollar amount of the and administration of contracts awarded reserved , Joint venture attributable to the MBE or under EPA financial assistance agreements . WBE . If an MBE ' s or WBE 's risk of loss , Failure by the contractor to carry out these Subpart O-[Amended] control or management responsibilities requirements is a material breach of this is not commensurate with its share of contract which may result in the termination ■ 17 The authority citation for part 35 , the profit , the Agency may direct an of this contract or other legally available adjustment in the percentage of MBE or remedies . subpart Q , continues to read as follows : WBE participation . PART 35-[AMENDED] Authority: 42 U.S .C. 9601 et seq , ( d) Central Purchasing or § 35.6015 [Amended] Procurement Centers . A recipient must Subpart E-[Amended] report MBE and WBE participation from ■ 18 . Section 35 . 6015 (a ) is amended by its central purchasing or procurement ■ 6 , The authority citation for part 35 , removing the definitions for "Minority centers . subpart E , continues to read as follows ; Business Enterprise (MBE ) " and (e) Brokers . A recipient may not count Authority: Secs . 109(b) , 201 through 205 , "Women 's Business Enterprise (WBE) " . expenditures to a MBE or WBE that acts 207 . 208 (dL 210 through 212 , 215 through merely as a broker or passive conduit of 217 , 304(d) ( 3 ) , 313 , 501 , 511 , and 516(6) of § 35,6550 [Amended] funds , without performing, managing , or the Clean Water Act , as amended, 33 U.S . C. supervising the work of its contract or 1251 et seq . ■ 19 . Section 35 . 6550{a)(8 ) is removed. subcontract in a manner consistent with and reserved. normal business practices . § 35.936-7 [Removed] p o ■ 7 . Section 35 .936-7 is removed . § 35.6580 [Amended] ( 1 ) Presumption . If 50 /o or more of the total dollar amount of a MBE or 1ABE ' s § 35,9384 [Amended] ■ 20 . Section 35 . 6580 is removed , prime contract is subcontracted to a non-DBE , the MBE or WBE prime ■ 8 . Section 35 . 938-9 is amended by § 35.6610 [Amended] contractor will be presumed to be a removing and reserving paragraph broker , and no MBE or WBE (b)( 2 ) . ■ 21 . Section 35 .6610(c) is removed and participation may be reported , reserved , (2) Rebuttal. The MBE or WBE prime Subpart K-[Amended] § 35.6665 [Removed] contractor may rebut this presumption n 9 . The authority citation for part 35 , by demonstrating that its actions area 22 , Section 35 . 6665 is removed . consistent with normal practices for prime contractors in its business and Authority: Sacs . 205 (m) , 501 (a) and title VI PART 40-[Amended] of the Clean Water Act , as amended, 42 that it will actively perform , manage U.S .C . 1285 (m) , 33 U . S .C . 1361 (a) , 33 U , S . C* and supervise the work under the 1381 --1387 . ■ 21 . The authority citation for part 40 contract. is revised to read as follows: (f) MBE or WBE Truckers/Haulers. A § 35 ,3145 [Amended] Authority: 7 U . S .C. 136 at seq. ; 15 U . S .C. recipient may count expenditures to an ■ 1. 0 , Section 35 . 3145 is amended by 2609 et seq. , 33 U. S .C. 1254 et seq. and 1443 ; MBE or WBE trucker/hauler only if the removing paragraphs ( d) and (e) . 42 L' .S . C. 241 at seq . , 300f et seq . , 1857 et MBE or WBE trucker/hauler is seq. , 1. 891 of seq . , and 5901 et seq . performing a commercially useful Subpart L-[Amended] function , The following factors should § 40.145-3 [Amended] be used in determining whether an MBE ■ 11 . The authority citation for part 35 , or WBE trucker/hauler is performing a subpart L , continues to read as follows : ■ 22 . Section 40 . 145-3 ( c) is removed commercially useful function : Authoritv: Section 1452 of the Safe and reserved . ( 1 ) The MBE or WBE must be Drinking Water Act, as amended , 42 U . 5 .C. [ FR Doc. E8-6003 Filed 3-25-08 ; 8 :45 amt responsible for the management and 300j -121 supervision of the entire trucking/ BILLING CODE 5560-GO-P hauling operation for which it is § 35.3575 [Amended] responsible on e particular contract , and a 12 , Section 35 . 3575 ( d) is removed and there cannot be a contrived arrangement reserved . ATTACHMENT B 40 CFR § 31 . 36 (b) through (i) , Procurement Federal Register / Vol . 70 , NO . 168 / Wednesday , August 31 , 2005 / Rules and Regulations 51863 1970- E.O . 11541 , 35 FR 10737 . 3 CFR, nonprocurement instruments , and some 48 of the CFR, rather than through 1966-1970 , p . 939portions also apply to procurement Federal agency regulations on grants s 2 . Section 1 .L05 is revised to read as contracts . For example , the : and agreements in this title . follows : ( a) Guidance on debarment and 0 3 . Section 1 .215 is revised to read as suspension in part 180 of this subtitle follows : § 1205 Applicability to grants and other applies broadly to all financial funding instruments6 assistance and other nonprocurement § 1 ,215 Reiationship to previous The types of instruments that are transactions , and not just to grants and issuances. subject to the guidance in this subtitle cooperative agreements . Although some of the guidance was vary from one portion, of the guidance. (b ) Cost principles in parts 20 , � � 5 D to another (note that each part identifies and 230 of this subtitle apply to organized differently within OMB the types of instruments to which it procurement contracts , as well as to circulars or other documents , much of applies ) . All portions of the guidance financial assistance , although those the guidance in this subtitle existed apply to grants and cooperative principles are implemented for prior to the establishment of title ] of agreements , some portions also apply to procurement contracts through the the CFR. Specifically : other types of financial assistance or Federal Acquisition Regulation in Title Guidance in Ion . . - Previously was in (a) Chapter I , part 180 . .. . ... .. . . ... .. .. . . .. . . . . .. . .. . . . . .. . . Nonprocurement debarment and suspension OM8 guidance that c orltonns with the govern- ment-wide common rule (see 60 FR 33036, June 26 , 1995) , (b) Chapter II , part 215 . . . .. . .. . . . .. . . . . . . .. . . . . . . . . . .. • • • • • • Administrative requirements for grants and I OM$ Circular A 110 . agreements. (c) Chapter It , part 220 . . .. . . . . . . . ... . .. . . . . . . .... . . . .. . . . Cost principles for educational institutions . . . . , . OMB Circular A-21 . . . . . (d) Chapter It , pert 225 . . . . . . . .. . . . . . .. .. ... . . .. . . . . . .. . . . .. . Cost principles for State , local , and Indian OMB Circular A-87 . tribal govemments . (e) Chapter It , part 230 . . . . . . . . .. . . . . . . . . .. ... .. . . . . . . . . . . .. . Cost principles for non-profit organizations . . . . , i OMB Circular A-122 . (f) [ Reserved]. 1FR Doc , 05-16646 Filed A-30-05 ; 8 :45 aml Second , we are publishing the well as in an attachment. Please include BILUNG CODE 311641 -P guidance in the recently established your name , title , organization , postal Title 2 of the Code of Federal address , telephone number , and e-mail Regulations ( 2 CFR) . Locating it in 2 address in the text of the message , OFFICE OF MANAGEMENT AND CFR will make it easier to find . Also , the Comments may also be submitted via BUDGET OMB guidance will be co-located in the facsimile to ( 202) 395-3952 , same title of the CFR as Federal Comments may be mailed to Elizabeth 2 CFR Parts 180 and 215 agencies ' implementing regulations that Phillips , Office of Federal Financial Guidance for Governmentwide adopt the guidance . That is , consistent Management , Office of Management and with the framework put in place when Budget , Room 6025 , New Executive Debarment and Suspension OMB established Title 2 , each Federal Office Building, 725 17th Street , NW . , (Nonprocurement) agency will issue its implementing Washington , DC 20503 . AGENCY: Office of Management and regulation in its chapter in Subtitle B of FOR FURTHER INFORMATION CONTACT: Budget. 2 CFR. This notice also makes minor Elizabeth Phillips , Office of Federal ACTION : interim final guidance , changes to the previously issued 2 CFR Financial Management, Office of part 215 , to conform that part with the Management and Budget, telephone SUMMARY : The Office of. Management guidance published today . ( 202 ) 395.3053 ( direct) or ( 202 ) 395– DATES: The effective date for this 3993 ( main office) and e-mail ffi : and Budget (OMB ) is updating its e hilli ®omb . eo ov. guidance on nonprocurement interim final guidance is September 30 , P P P r' debarment and suspension to conform 200Vol 5 . To be considered in preparation of SUPPLEMENTARY INFORMATION : to the common rule that 33 Federal the final guidance , comments on the Background , The guidance updated by a envies ublished on November 26 , interim final guidance must be received this notice originated with Executive g p b October 31 . 2005 . Order (E . O .) 12549 , "Debarment and 2003 . The agencies issued that common Y rule after resolving public comments ADDRESSES : Due to potential delays in Suspension , " That Executive order , received in response to a Notice of OMB ' s receipt and processing of mail issued in 1986 , gave government-wide Proposed Rulemaking. In updating the sent through the U .S . Postal Service , we effect to each, agency 's nonprocurement guidance , the OMB is making two encourage respondents to submit debarment and suspension actions . improvements to streamline the policy comments electronically to ensure Section 6 of the Executive order framework in this area, timely receipt. We cannot guarantee that authorized OMB to issue guidance on First , we are issuing the guidance in comments mailed will be received nonprocurement debarment and a format that is suitable for Federal before the comment closing date . suspension. Section 3 directed agencies agency adoption. Agency adoption of Electronic mail comments may be to issue implementing regulations the guidance will reduce the volume of submitted to: ephiIlip�omb.eop .gov . consistent with the guidance . Federal regulations on nonprocurement Please include " OMB suspension and The guidance has been revised twice debarment and suspension , making it debarment guidance " in the subject line since OMB first issued it in 1981 (52 FR easier for the affected public to use , and of your e-mail message . Also , please 203601 . In 1988 , when the agencies easier and less expensive for the Federal include the full body of your comments finalized a common rule to implement Government to maintain. in the text of the electronic message , as OMB ' s 1987 guidance , OMB revised its 51864 Federal Register / Vol. 70 , No , 168 / Wednesday , August 31 , 2o05 / Rules and Regulations guidance 153 FR 191601 to conform with to identify the agencv-to-agency Structure and content of the nce. Our intent is to i ssu the agencies ' rule . The second revision variations in the language. To dose itral g ujdance that is substantively e OMB of the OMB guidance occurred in 1995 either must locate the o,h the riginal Fedefrom the common [60 FR 330361 . That revision conformed Rblished the common ter notice in whi( rule or�carefully unchanss ed by gethe Federal agencies in the guidance with the Federal agencies ' pu read and compare the agencies ' separate November 2003 . We modified some of update of the common rule to give reciprocal government-wide effect to codifications of the rule . With the new common rule , owever , to create a part both procurement and nonprocurement approach , however , each agency ' s as debarment and suspension actions , an implementation of the guidelines will thats the reads than ai°agn guidance to update which implemented. E .O . 12689 bc: a brief rule giving at re )regulatory effect for regulationp and section 2455 of the Federal guidance , g' g r� The most significant structural change Acquisition Streamlining Act, that agency ' s activities ; and ( 2) states is in Sections 180 .05 to 180 .45 of the Today ' s notice conforms the guidance any agency-specific additions , document, which precede subpart A. with the Federal agencies ' November 26 , clarifications., and exceptions to the The primary purpose of these sections is 2003 , update to the common rule 168 FR government•wide policies and provide OMB guidance to Federal 66534 ] , but does so in a way that will procedures contained volume ohFederal ce ageto ncies on howtouse the guidance in greatly improve the relationship F the remainder of the part, Sections between OMB ' s guidance and Federal regulations in the C_ R. The 33 180 . 20 through 180 . 35 , for example , tell agencies ' implementing regulations . In individual agencies' separate Federal the recent update , the Federal agencies codiifications mon rule f the full require text Of the e about regulations to implement the guidance , recast the common rule in plain d some language and made other needed 750 pages in each paper copy of each iof Federal identify alscontentrequired those regulations , improvements . OMB did not issue a edition e tulations (i e., about 750 ,000 pages and specify where and when the notice at that time to amend the g guidance because we were considering for every 1 ,000 paper copies of the CFR agencies must issue the regulations . ve no two improvements to the approach we w are e Poach will educe this bte y bout counterparts in the Novt the Most of these early iembe ons x2003 had used in the past. PP dance. The first uisix-fold, which reduces both burdens on common rule , since it was designedto Adoptable g improvement u our past approach is to the public and costs of maintaining the be an guidagencyrule rather than OMB publish the full text of the OMB regulations. guidance in a form suitable for agency • Streamline the process for updating Following section rt , is t , in subparts adoption. The 1988 and 1995 notices the government-wide requirements on to through agency wothe uld adopt to specify amended the guidance to conform with nonprocurement debarment and g y updates to the common rule but the suspension. The process for updating a its policies and procedures for guidance was not published anywhere common rule is exceedingly complex nonprocurement debarment and ctions in sun in full text as an OMB issuance . Thus , and time consuming . The 33 Federal suspension ,guidance h have different section the full text of policies and procedures agencies must process the same on nonprocurement debarment and rulemaking document before it can be numbers than their counterpart sections suspension had to appear in each of 33 sent to the OMB and published in the in the common rule. The changed bers are due to the Federal agencies ' separate codifications Feder i al Re daetiziwthe ru1hich eW With the create ng inclusion section of the ON guidance in of the common rule , Today ' s notice, by P g sections 180 . 05 through 180 .45 , which publishing the OMB guidance in a form now approach , OMB will publish that Federal agencies can adopt, proposed changes to the guidance in the displaced and forced renumbering of eliminates the need for each agency to Federal Register , with an opportunity sections �. 25 to Nove ribethapreceded for the public to comment. Once subpart A in the November 2003 repeat the full text in its own P implementing regulation , agencies have issued their regulations common only other ortion of the This fundamentally different adopting the guidance , the process for guidance where section numbers vary approach of adoptable guidance has future updates will be complete when from the November 2003 common rule three ma or advantages over the OMB issues the final guidance. is sub art I , whicb contains definitions previous approach of having each Agencies will not need to amend their of tarps . W e replaced the defined term agency codify the full-text of a common regulations adopting the guidance . rule . Specifically , the new approach Publication of the guidance in 2 CFRV " agency " in the common rule with the will : The second improvement to our past term"Fede al agency " d forcethe OMB • Make it easier for recipients of approach is to locate the OMB guidance o covered transactions or respondents in in Subtitle A of the new Title 2 of the reorganization of the definition sections suspension or debarment actions to CFR, " Grants and Agreements , " that in subpart I to keep the defined terms discern agency-to-agency variations OMB established on May 11 , 2004 169 in alphabetical order . from the common rule language . When FR 26276) . Publishing the guidance in In one, section of subpart A, we made agencies published the common ruto clarify the le on the public makes land when agent Very lcies e to the substance. Section A 0o the nonprocurement debarment and suspension , each agency was allowed to issue their new regulations adopting the an ae nber giv ncanm ppropriate causele stated have some agency -specific additions or guidance in the same CFR titluidance , will co4ocate the e the for debarment, could take an action to exceptions to the government-wide guidance rules . e s also will maintain a exclude " any person who has been language . Because each agency ' s agency variations are embedded in and copy of the current guidance at the OMB involved , is currently involved, °r may integrated with the agency ' s publication Web site (http ://www.whitehouse.govi reason verablsd transactionbe expected t� be involved of the full -text of the rule , it is difficult omblcirculars) , for the benefit of in the far a recipient or respondent that does individuals who would prefer to access corresponding d newich its in secttonO80B.150 , business with multiple Federal agencies it there , Federal Register / Vol , 70 , No , 168 / Wednesday , August 31 , 2005 / Rules and Regulations 51865 is " any person who has been, is , or may debarment and suspension will : ( 1 ) PART 180-- OMB GUIDELINES TO reasonably be expected to be a Establish its chapter in Subtitle B of 2 AGENCIES ON GOVERNMENTWIDE participant or principal in a covered. GFR , consistent with the structure DEBARMENT AND SUSPENSION transaction . " The revised language is established for that title ; ( 2 ) issue in that (NONPROCUREMENT) intended to be more precise than the chapter of 2 CPR its brief rule adopting somewhat vague wording of the the OMB guidance and stating any Sec. ? common rule . additions , clarifications , or exceptions 180. 5 What does this part do . One language change throughout the to the policies and procedures 180 . 10 How is this part organized ' guidelines is use of the term "Federal 180. 15 To whom do these guidelines apply? J agency " where agency responsibilities , contained in the guidance ; and ( 3 ) i80.20 What must a Federal agency do to authorities , and procedures are remove tine November 2003 common imDlement these guidelines? described : The common rule used case rule from its own CFR title . We expect 180. 25 What must a Federai agency address personal pronoun " we , " which was to complete the process in calendar year in its implementation of these appropriate in an agency rule but not in 20064 guidelines . OMB guidance . Conforming 2 CFH part 215 (OMB 180. 30 Where does a Federal agency We also dropped the references in Circular A-110). We also are making the implement these guidelines? sections 180 . 530 and 180 . 945 of the following two changes to 2 CFR part 180. 35 By when must a Federal agency guidance (which had the same section 215 , in order to conform the OMB implement these guidelines g 180 .40 How are these guidelines numbers in the common rule) to the guidance in that part with the guidance maintained? paper version of the list of excluded on nonprocurement debarment and 180.45 Do these guidelines cover persons parties maintained by the General suspension : who are disqualified, as well as those Services Administration ( GSA) . Section . We dropped the reference in who are excluded from nonprocurement _ . 530 of the November 2003 common transactions? rule stated that Federal agencies 215 . 13 to the common rule on anticipated that the paper version of the nonprocurement debarment and Subpart A•-• eneral list would be discontinued. The paper suspension , in anticipation of agencies 180. 100 How are subparts A through ! version no longer is available , so we adoption of the guidance and removal of organized? deleted the references to it. the common rule from their titles in the 180 . 105 How is this part written? Other minor wording changes CFR . 180 . 110 Do terms in this part. have special throughout subparts A through I are to e We revised Paragraph Bin meanings? make the document read properly as Appendix A to 2 CFR part 215 , to 180 . 115 What do subparts A through 1 of OMB guidance . We have posted a correct : ( 1 ) The name of the Excluded this part do source and destination table at the OMB Parties List System: and ( 2 ) the 180. 12D Do subparts A through I of this part Web site that shows which section in threshold for coverage of procurement apply to at i the OMB dance corresponds to each g P 180 . n n What is the purpose of the � p contracts awarded by recipients of nonprocurement debarment and section in the common rule and Federal financial assistance awards . ? summarizes the more significant suspension system 18D changes , none of which we believe to be List of Subjects . per Haw doesson 's involvement exclusion restrict a person 's in covered substantive change . transactions? Invitation to comment . Our intent is 2 CFH Part 18R 180 . 135 Mi}y a Federal agency grant an to preserve in the OMB guidance the Administrative practice and exception to let an excluded persor. substantive content of the November procedure , Grant programs , Loan participate in a covered transaction? 2003 common rule. Given that the programs , Reporting and recordkeeping 180 . 140 Does an exclusion under the agencies published the final common nonprocurement system affect a person's rule after an opportunity for public requirements . PP P eligibility for Federal procurement comment, we are publishing these 2 CFH Part 215 contracts ? guidelines as interim final guidelines , 180 . 145 Does an exclusion under the rather than proposing the substance for Accounting , Colleges and Federal procurement system affect a comment again. For future updates to Universities , Grant programs , Hospitals , person' s eligibility to participate in this guidance , we will propose Nonprofit organizations , Reporting and nonprocurement transactions ? substantive changes with an recordkeeping requirements . 180. 150 Against whom may a Federal opportunity for public comment , in Dated: August 8 , 2005 . agency take an exclusion action? accordance with § 180 . 40 of the 180 . 155 How do 1 know if a person is guidance . In soliciting comments on the Joshua B . Bolten, excluded? interim finaluidance , we are not Director. P Subpart B—Covered Transactions seeking to revisit substantive issues Authority and Issuance 180. 200 What is a covered transaction? raised by those earlier comments and i80.205 Why is it important to know if a resolved by the agencies during m For the reasons set forth above , the particular transaction is a covered preparation of their nasal rule . However , Office of Management and Budget transaction? we. invite comments on any unintended amends 2 CFR, Subtitle A, as follows : i8o , no which nonprocurement, changes we have made in the guidance transactions are covered transactions ? relative to the November 2003 common Chapter I.-Office of Management and i80 .215 Which nonprocurement rule . Budget Governmentwide Guidance for transactions are not covered Next steps . We. will finalize the Grants and Agreements transactions ? guidance after resolving any comments n 1 A heading is added to Iiia ter 1 to 180 . 220 Are any procurement contracts received on the interim final version g P included as covered. transactions? published in this notice . Each Federal read as set forth above , 180. 225 How do I know if a transaction in agency that is a signatory to the a 2 . Part 180 is added to Chapter 1 , to which 1 may participate is a covered common rule on nonprocurement read as follows: transaction? 51866 Federal Register / Vol. 70 , No . 168 / Wednesday , August 31 , 205 / Rules and Regulations Subpart C - Respnnsibilities of Participants 180.440 What action may 1 take if a primary Subpart II Debarment Regarding Transactions Doing Business With tier participant knowingly does business 480 , 800 What are the causes for debarment? Other Persons with an excluded or disqualified person? 480, 805 What notice does the debarring 180 .445 What action may I take if a primary official give me if I am, proposed for 180.300 What must I do before I enter into tier participant fails to disclose the debarment? a covered transaction. with another information required under § 180. 335 ? arson at the neat lower tier? 780. 810 When does a debarment take p 180 .450 What may 1 do if a lower tier effect? 180.305 May I enter into a covered participant fails to disclose the transaction with an excluded or information required under § 180. 355 to 480 .8 How may I contest a proposed disqualified person? the next higher tier? debarment? 1II0.820 How much time dp I have to 18D .340 What must I do if a Federal agency excludes a person with whom I am Subpart E-Excluded Parties List System contest a proposed debarment? already doing business in a covered. 480 .500 What is the purpose of the 180 .825 What information must I provide. to transaction? Excluded Parties List System (EPLS)? the debarring official if I contest the 180 . 315 May I use the services of an 180 .505 Who uses the EPLS? proposed debarment? excluded person as a principal under a 180 . 510 Who maintains the EPLS ? 180 . 830 Linder what conditions do I get an covered transaction? 160 . 515 What specific information is in the additional opportunity to challenge the 180 . 320 Must I verify that principals of My EPLS? facts on which the proposed debarment covered transactions are eligible to 4a0 .52D Who places the information into is }used? participate? the EPLS ? 180 , 835 Are debarment proceedings formal? 180 .325 What happens if I do business with 180. 525 Whom do ]. ask if I have questions 180.840 How is fact-finding conducted? an excluded. person in a covered about a person in the EPLS? 180.845 What does the debarring official transaction? 160 .530 Where can I find the EPLS ? consider in deciding whether to debar 180 .330 What requirements must 1 pass down to persons at lower tiers with Subpart F-General Principles Relating to 180. 50 What is the standard of proof ins whom I intend to do business? Suspension and Debarment Actions debarment action? Disclosing Information Primary Tier 180 . 600 Haw do suspension and debarment 1B0 855 Who has the burden of proof in a 0 Participants actions start? debarment action? 18 .605 How does suspension differ from 180.860 What factors may influence the 180 . 335 What information must I provide debarment? debarring official' s decision? before entering into a covered 180 , 610 What procedures does a Federal g transaction with a Federal agency? agency use in suspension and debarment 180 ,865 How long May my debarment last? 180 .340 If I disclose unfavorable actions? 180.870 When do I know if the debarring information required under § 180 . 335 180 . 615 How does a Federal agency notify official debars me? will I be prevented from participating in a person of a suspension or debarment 180.875 Mav I. ask the debarring official to the transaction? action? reconsider a decision to debar me? 180 .345 What happens if ! fail to disclose 180 .620 Do Federal agencies coordinate 180.880 What factors may influence the information required under § 180 . 3357 suspension and debarment actions? debarring official during 160 . 350 %chat must I do if I learn of 180 ,625 What is the scope of a suspension reconsideration? information required under § 180 . 335 or debarment? 180 . 885 May the debarring of extend a after entering into a covered transaction . 180.630 May a Federal agency impute the debarment? with a Federal agency? conduct of one person to another? Subpart I-Definitions Disclosing Information-Lower Tier 180 , 635 May a Federal agency settle a P debarment or suspension action? 160.900 Adequate evidence. Participants 180 , 640 May a settlement include a 1804905 Affiliate, 180 . 355 What information must i provide to voluntary exclusion? 1, 80 .910 Agent or representative, a higher tier participant before entering 180. 645 Do other Federal agencies know if 160.945 Civil ;udgme= into a covered transaction with fust an agency agrees to a voluntary 1804920 Conviction. participant? exclusion? 180.925 Debarment. 36 180 . 0 What happens if I fail to disclose Subpart G-Sus ension 180. 930 Debarring officialt information required under § 180. 355 ? 180 .935 Disqualified. 1B0 , 365 What must I do if I learn of 480 , 700 When may the suspending official 180 . 940 . Excluded or exclusion. information roauired under § 180 .355 issuea snap©nsion? 1.80 . 945 Excluded Parties List System after entering into a .covered transaction 180 .705 What does the suspending official (EPLS) , with a higher tier participant? consider in issuing a suspension? 180 , 950 Federal agency . 710 When does a suspension take Subpart D-Responsibilities of Federal 180 . effect? 180 . 955 Indictment. Agency officials Regarding Transactions 180. 745 What notice does the suspending 180 . 960 Ineligible or ineligibility . 180. 965 Legal pzoceedings . 180 .400 May 1 enter into a transaction with official give me if I am suspended? on? 180. 970 Nonprocitrement transaction. an excluded or disqualified person? 180. 720 How may I contest a suspensi 180.405 May I enter into a covered 180. 725 Hous much time do I have to 160. 975 Notice , transaction with a participant if a contest a suspension? 180 . 980 Participant. principal of the transaction is excluded? 180 . 730 What information must I provide to 180 . 985 Person, 180 .410 May i approve a participant's use the suspending official if I contest the 180. 990 Preponderance of the evidence . of the services of an excluded person? suspension? 180. 995 Principal , 180 .415 What. must Ido if a Federal agency 180. 735 Linder what conditions do I get an 180. 1000 Respondent. excludes the participant or a principal additional opportunity to challenge the 180 . 1005 State . after I enter into a covered transaction? facts on which the suspension is based? 180 . 1010 Suspending official. 180 .420 May I approve a transaction with 180 .740 Are suspension proceedings 180 . 1015 Suspension Voluntary exclusion or an excluded or disqualified person at a formal? 180 . 1020 lower tier? 180 .745 How is fact-finding conducted? voluntarily excluded. 180 .425 When do I check to see if a person 180 .750 What does the suspending official Appendix to Part I80-- overed Transactions is excluded or disqualified? consider in deciding whether to continueSec, 160 .430 Haw do I check to see if a person or terminate My suspension? Authority E.O. 1 24 9 . Pub . L. 986 Co 5 , 108 is excluded or disqualified? 180 .755 When will I know whether the Stat. 3327 ; O. 12549 , 3 CFR, 1986 Comp . , What must I require of a primary suspension is continued or terminated? p . 189 ; E.O . 1268913 CFR, 1989 Comp ., p . 180 .435 participant?Whatus 180 . 760 How long may My suspension last? 235 . tier Federal Register / Vol . 70 , No , 168 / Wednesday , August 31 , 2005 / Rules and Regulations 51867 § 180Z What does this part do? Federal agency some discretion. ( 6 ) Include a subpart covering This pari provides Office of Specifically , the regulation must— disqualifications , as authorized in Management and Budget (OMB ) ( 1 ) Identify either the Federal agency § 180 .45 , guidance for Federal agencies on the head , or the title of the designated g g official who is authorized to rant §implement Where does a Federal agency governmentwide debarment and g implement these guidelines ? suspension system for nonprocurement exceptions under § 180 . 135 to let an programs and activities . excluded person, participate in a Each Federal agency that participates covered transaction. . in the governmentwide nonprocurement § 180 .10 How is this part organized ? ( 2 ) State whether the agencv includes debarment and suspension system must This part is organized in two as covered transactions an additional issue a regulation implementing these segments . tier of contracts awarded under covered guidelines within its chapter in subtitle ( a) Sections 180 . 5 through 180 .45 nonprocurement transactions , as B of this title of the Code of Federal contain general policy direction for permitted under § 180 . 220 ( c ) . Regulations . Federal agencies ' use of the standards in ( 3 ) Identify the method (s ) an agency § 18025 By when must a Federal agency subparts A through I of this part . official may use , when entering into a Implement these guidelines? (b) Subparts A through I of this part covered transaction with a primary tier Federal agencies must submit contain uniform governmentwide participant, to communicate to the proposed regulations to the OMB for standards that Federal agencies are to participant the requirements described review within nine months of the use to specify— in § 180 .435 . Examples of methods are issuance of these guidelines and issue ( 1 ) The types of transactions that are an award term that requires compliance final regulations within eighteen covered by the nonprocurement as a condition of the award ; an months of these guidelines . debarment and suspension system ; assurance of compliance obtained at ( 2 ) The effects of an exclusion under time of application ; or a certification . § 180.40 How are these guidelines that nonprocurement system , including (4 ) State whether the Federal agencv ' 6 maintained? reciprocal effects with the policy is to restrict participants ' The Interagency Committee on governmentwide debarment and collection of certifications to verify that Debarment and Suspension established suspension system for procurement ; lower-tier participants are not excluded by section 4 of E .O . 12549 recommends ( 3 ) The criteria and minimum due or disqualified ( see § 180 .300 (b)) . If it is to the OMB any needed revisions to the process to be used in nonprocurement the policy , the regulation needs to guidelines in this part. The OMB debarment and suspension actions ; and require agency officials , when entering publishes proposed changes to the (4 ) Related policies and procedures to into covered transactions with primary guidelines in the Federal Register for ensure the effectiveness of those actions . tier participants , to communicate that public comment , considers comments § 180.15 To whom does the guidance policy ' with the help of the Interagency apply? ( 5) State whether the Federal agency Committee on Debarment and The guidance provides OMB guidance specifies a particular method that Suspension , and issues the final only to Federal agencies . Publication of participants must use tQ communicate guidelines . the guidance in the CFR does not compliance requirements to lower-tier a its nature—it is guidance and participants . as described in § 180 .45 Do these guidelines cover change g § 180 . 330(a) . If there is a specified persons who are disqualified, as well as not regulation. Federal agencies ' method , the re ulation needs to re wire implementation of the guidance governs those who are excluded from g q ency officials , when entering into nonprocurement transactions? the rights and responsibilities of other ag covered transactions with primary tier A Federal agency may add a subpart persons affected by the nonprocurement participants , to communicate that covering disqualifications to its debarment and suspension system, re9uirement. regulation implementing these § 180.20 What must a Federal agency do to (c) May also , at the agency ' s option: guidelines , but the guidelines in implement these guidelines ? ( 1 ) Identify any specinc types of subparts A through I of this par— As required by Section 3 of EA , transactions that the Federal agency (a) Address disqualified persons only 12 549 , each Federal agency with includes as " nonprocurement tp— nonprocurement programs and. activities transactions " in addition to the ( 1 ) Provide for their inclusion in the covered by A subparts through I of the examples provided in § 180 .970 . EPLS ; and p g (2 ) Identify any types of ( 2 ) State responsibilities of Federal guidance must issue regulations nonprocurement transactions that the agencies and participants to check for consistent with those subparts . Federal agency exempts from coverage disqualified persons before entering into § 180.25 What must a Federal agency under these guidelines , as authorized covered transactions , address in its implementation of the under § 180 . 330 (g) ( 2) . (b) Do not specify the— guidance? (3 ) identify specific examples of types (1 ) Transactions for which a Each Federal agency implementing of individuals who would be disqualified person is ineligible . Those regulation. : It the Federal agency' s transactions vary on a case-by case (a) Must establish policies and nonprocurement programs and basis , because they depend on the procedures for that agency 's transactions , in addition to the types of language of the specific statute , nonprocurement debarment and individuals described at § 180 . 995 . Executive order or regulation that 00 suspension programs and activities that (4 ) Specify the Federal agency ' s caused the disqualification; are consistent with the guidance . When procedures , if any , by which a ( 2 ) Entities to which a disqualification adopted by s Federal agency , the respondent may appeal a suspension or applies ; or provisions of the guidance has debarment decision. ( 3 ) Process that a Federal agency uses regulatory effect for that agency ' s ( 5 ) identify by title the officials to disqualify a person . Unlike exclusion programs and activitiesdesignated by the Federal agency head under subparts A through I of this part, (b) Must address some matters for as debarring officials under § 180 . 930 or disqualification is frequently not a which these guidelines give each suspending officials under § 180 , 1010 . discretionary action that a Federal 51868 Federal Ren sterlVal . 70 , No , 168 / Wednesday , August 31 , 2005 / Rules and Regulations audience with special responsibilities , agency takes , and may include special Subpart A—General as shown in the following table: procedures. § 180 ,100 How are subparts A through I organized? (a) Each subpart contains information related to a broad topic or specific In subpart . . You will find provisions related to . . . A general information about Subparts A through I of this part. B ' the types of transactions that are covered by the Governmentwide nonprocurement suspension and debarment sys teme rticipate in covered transactions. the responsibilities of persons who pa D , ,,,„ ,, , , , , , ,, , ,, , , , , ,,, ,, , memo , , , the responsibilities of Federal agency officials who are authorized to enter into covered transactions, E the responsibilities of Federal agencies for entering information into the EPLS F . .. „• the general principles governing suspension, debarment, voluntary exclusion and settlement. G .. . . . .. . .. . . . . .. . . . . l suspension actions . H . , . . . . . VIN . . 4 debarment actions . l amoeba 11119114461 111 ON , I definitions of terms used in this part. (b) The following table shows which subparts may be of special interest to vou , depending on who you are : I See Subpart(s) . . . If you are . . A, 8 , C and 1 . ( 1 ) a participant or. principal In a nonprocurernent transaction .. . .. . .. . ,. . : . . , I A, B , F , G and I . (2) a respondent in a suspension action .. . . . . . . . .. .... .. . . . . .. . ... ... . .. . .. . . .. . .. ... , .. .. A, g, F , H and I . (3) a respondent in a debarment action . .. . ... . . . ... . . .. . . .. . . . . . . . . . . . . . . . . . .. . .. . . . . .. .. .. .. . .. . . . .. . . . . . . ... . .. . . . . . . . . . . . ... . . .. .. . . .. . . . . . . .. . .. , . , AM (4) a suspending official . .. . ... . . .... . . ... . ... . . . ... . ... . . . . . . . .. . . . . . . . .. . . .. . , . , . . . . .... . . . . . .. ... .. .... . A, B, E. F , G and t. D , F, H and t , .. . . . . . . . . . . . ... . . . ... . . . . . .. .. .. . . .. . . .. . . . . . . .. .. . . . . . . . . ... ... . .. . . . . .. . .. . . . . . . . ... . . . .... . .. . . . . . . .. . .. .... ... . A B D , E and I . (5) a debarring official ... . . ... .... . . ... . . ... .. .. ... .. . . . .. .. .. . . . . . . .. . . .. . . ... .. (6) an Federal agency official authorized to enter into a covered transaction .,. . . 4 . . .. ... . . .• • . . .. . .• • teammate , § 180 .105 How is this part written? Executive Order 12689) , or other ( d) Federal agency official who is (a) This part uses a " plain language” authorities . Disqualifications frequently authorized to enter into covered format to make it easier for the general are not subject to the discretion of a transactions with non-Federal parties , public and business community to use , Federal agency official , may have a § 180.125 Whet is the purpose of the The section headings and text, often in different scope than exclusions , or have nonproeurement debarment and the form of questions and answers , must special conditions that apply to the suspension system? be read together. disqquglification ; and (b) Pronouns used within this part, (c) IneIigibiIity or ineligible , which (a) To protect the public interest, the such as "Iand "you , " change from generally refers to a person who is either Federal Government ensures the " excluded or disqualified , integrity of Federal programs by subpart to subpart depending on the conducting business only with audience being addressed . g 180.115 What do Subparts A through I of responsible persons . (c) The " Covered Transactions " this part do? (b) A Federal agency uses the diagram in. the appendix to this part Subparts A through I of this part nonprocurement debarment and shows the levels or "tiers " at which a provide for reciprocal exclusion of sus ensI n system to exclude from Federal agency may . enforce an persons who have been excluded under Federal programs persons who are not exclusion. the Federal Acquisition Regulation, and Federal responsible . § 180.110 Do terms in this part have provide for the consolidated listing of presently special meanings? all persons who are excluded, or (c) An exclusion is a serious action throughout the disqualified by statute , executive order that a Federal agency may take only to This part uses terms .or other legal authorityprotect the public interest. A Federal text that have special throughout A Those agency may not exclude a person or terms are defined in subpart I of this § 180 .120 Do subparts A through 1 of this commodity for the purposes of part. For example , three important terms part apply to me? punishment,are— Portions of subparts A through I of p a) Exclusion or excluded , which this pari (sae table at § 160 . 100 (b) ) apply § 180.130 How does ori exclusion restrict a refers only to discretionary actions to you if you are a--- person' s involvement in covered taken by a suspending or debarring ( a) Person who has been , is , or may transactions ? official under Executive Order 12549 reasonably be expected to be , a With the exceptions stated in and Executive Order 12689 or under the participant or principal in a covered § § 180 , 1351 315 , and 420 , a person who Federal Acquisition Regulation (48 CFR transaction; is excluded by any Federal agency may part 9 , subpart 9 .4) ; (b) Respondent (a person against not: (b) Disqu4lification or disqualified, whom a Federal agency has initiated a ( a) Be a participant in a Federal which refers to prohibitions under debarment or suspension action) ; specific statutes , executive orders ( other (c) Federal agency debarring or agency {o soaition that is a covered than Executive Order 12549 and suspending official; or Federal Register / Vol . 70 , No , 1681 Wednesday , August 31 , 2005 / Rules and Regulations 51869 (b ) Act as a principal of a person Subpart B—Covered Transactions governments or foreign governmental participating in one of those covered entities . transactions . § 180.200 What is a covered transaction? (b ) A benefit to an individual as a A covered transaction is a personal entitlement without regard to 9180136 Maya Federal agency grant an nonprocurement or procurement the individual ' s present responsibility exception to let an excluded person transaction that is subject to the in a covered transaction? 1 (but benefits received in an individual' s participate prohibitions of this part . It may be a business capacity are not excepted) . For ( a ) A Federal agency head or designee transaction at— example , if a person receives social may grant an exception permitting an ( a ) The primary tier , between e security benefits under the excluded person to participate in a Federal agency and a person (see Supplemental Security Income particular covered transaction. If the appendix to this part) ; or provisions of the Social Security Act , 42 agency head or designee grants an ( b ) A lower tier , between a participant. U . S . C . 1301 et seq. , those benefits are exception , the exception must be in in a covered transaction and another not covered transactions and , therefore , writing and state the reason (s) for person . are not affected if the person is deviating from the governmentwide excluded , policy in Executive Order 12549 . § 180.205 Why is it important If a particular (b) An exception anted by one transaction is a covered transaction ? ( c) Federal emplovment . P gr ( d) A transaction that a Federal Federal agency for an excluded person The importance of whether a agency needs to respond to a national or does not extend to the covered transaction is a covered transaction agency -recognized emergency or transactions of another Federal agency , depends upon who you are , disaster . ( a) As a participant in the transaction , ( e) A permit , license , certificate or § 180 .140 Does an exclusion under the you have the responsibilities laid out in nonprocurement system effect a person' s subpart C of this part. Those include similar instrument issued as a means to eligibility for Federal procurement responsibilities to the person or Federal regulate public health , safety or the contracts? agency at the next higher tier from environment , unless a Federal agency If any Federal agency excludes a whom you received the transaction , if specifically designates it to be a covered person under Executive Order 12549 or any , They also include responsibilities transaction. Executive Order 12689 , on or after if you subsequently enter into other (fl An incidental benefit that results August 25 , : 995 , the excluded person is covered transactions with persons at the from ordinary governmental operations , also ineligible for Federal procurement (g) Any other transaction if— next lower tier.transactions under the FAR. Therefore ; ( 1 ) The application of an exclusion to texclusion under this art has (b) As a Federal official who enters the transaction is prohibited by law; or an P into s primary tier transaction , you have ( 2 ) A Federal agency 's regulation reciprocal effect in Federal procurement the responsibilities laid out in subpart D exempts it from coverage under this transactions , of this part. ( c) As an excluded person , you may part, § decal 5 Does an t cystexcluion under the not be a participant or principal in the 180.220 Are any procurement contracts Federal procurement system affect a p p p § person' s eligibility to participate in transaction unless- included as covered transactions? nonprocurement transactions ? ( 1 ) The person who entered into the ( a) Covered transactions under this If any Federal agency excludes a transaction with you allows you to part— W person ari— person under the FAR on or after continue your involvement in a ( 1 ) Do not include any procurement August 25 , 1995 , the excluded person is transaction that predates your contracts awarded directly by a Federal also ineligible to participate in Federal exclusion , as permitted under § 1. 80 . 310 agency ; but agencies ' nonprocurement covered or § 160 .415 ; or ( 2 ) Do include some procurement transactions . Therefore , an exclusion ( 2 ) A Federal agency official obtains contracts awarded by non-Federal under the FAR has reciprocal effect in an exception from the agency head or participants in nonprocurement covered Federal nonprocurement transactions . designee to allow you to be involved in transactions . the transaction , as permitted under (b ) Specifically , a contract for goods § 180,150 Against whom may a Federal § 180 , 1351 or services is a covered transaction if agency take an exclusion action? any of the following applies : § 180.210 Which nonprocurement Given a cause that justifies an transactions are covered transactions? ( 1 ) The contract is awarded by a exclusion under this part, a Federal participant in a nonprocurement agency may exclude any person who All nonprocurement transactions , as transaction that is covered under defined in § 180 . 970 , are covered has been , is , or may reasonably he 180 . 2 ] U , and the amount of the transactions unless listed in the contract is expected to equal or exceed expected be a participant or principal exemptions under § 180 . 215 . p in a covered transaction. X25 .000 . § 180216 Which nonprocurement (2 ) The contract requires the consent § 180,155 How do I know if a person is transactions are not covered transactions? of an official of a Federal agency , In that excluded? The following types of case , the contract. regardless of the Check the Governmentwide Excluded nonprocurement transactions are not amount, always is a covered transaction , Parties List Svstem (EPLS) to determine and it does not matter who awarded it whether a person is excluded. The covered transactions: General Services Administration ( GSA) ( a) A direct award to— For example , it could be a subcontract maintains the EPLS and makes it ( 1 ) A foreign government or foreign awarded by a contractor at a tier below governmental entity ; a nonprocurement transaction , as shown available . as detailed in Subpart E o£ ( 2 ) A public international in the appendix to this part. this part, When a Federal agency takes organization ; ( 3) The contract is for Federally- an action to exclude a person under the ( 3 ) An entity owned ( in whole or in required audit services . nonprocurement or procurement part) or controlled by a foreign ( c} A subcontract also is a covered debarment and suspension system , the government ; or transaction if,- agency enters the information about the (4) Any other entity consisting wholly (1 ) It is awarded by a participant in a excluded person into the EPLS . or partially of one or more foreign procurement transaction under a 51870 Federal Register / Vol. 70 , No . 168 / Wednesday , August 31 , 2005 / Rules and Regulations nonprocurement transaction. of a terminate and the type of termination transaction requires you to use specific Federal agency that extends the action , if any , only after a thorough methods, coverage of paragraph (b)(1) of this review to ensure that the action is (b) Pass the requirement comply section. to any additional tier of proper and appropriate . with this subpart to each peerr son with nd whom the participant enters into e. contracts (see the diagram in the (h) You may not renew or exte appendix to this part showing that covered transactions (other than no-cast covered transaction at the next lower Optional lower tier coverage) ; and time extensions) with any excluded tier . ( 2) The value of the subcontract person , unless the Federal agency Disclosing Information—Primary Tier exceeds or is expected to exceed responsible for the transaction grants an participants 525 ,0004 exception under § 180 . 135 . § 180.335 What information must I provide § 180.225 How do I know if a transaction § 180 .315 May I use the services of an before entering into a covered transaction in which I may participate is a covered excluded person as a principal under a with a Federal agency? transaction? covered transaction? Before you enter into a covered. As a participant in a transaction , YOU ( a) You as a participant may continue transaction at the primary tier , you as will know that it is a covered. to use the services of an excluded the participant must notify the Federal transaction because the Federal agency person as a principal under a covered agency office that is entering into the regulations governing the transaction , transaction if you were using the transaction with you , if you know that . the appropriate Federal agency official services of that person in the transaction you or any of the principals for that or participant at the next higher tier before the person was excluded . covered transaction : who enters into the transaction with However , you are not required to ( a) Are presently excluded or vou , will tell you that you must comply continue using that person' s services as disqualified; with applicable portions of this part. a principal. You should make a decision (b) Have been convicted within the about whether to discontinue that preceding three years of any of the Subpart G—Responsibilities ofperson' s services only after a thorough offenses listed in § 180 . 800 ( a) or had a Participants Regarding Transactions review to ensure that the action is civil judgment rendered against you for Doing Business With Other Persons proper and appropriate . one of those offenses within that time § 180 .300 What must i do before I enter (b) You may not begin to use the period; into a covered transaction with another services of an excluded person as a ( c) Are presently indicted for or person at the next lower tier + principal under a covered transaction otherwise criminally or civilly charged When vou enter into a covered unless the Federal agency responsible by a governmental entity (Federal , State transaction with another person at the for the transaction grants an exception or local) with commission of any of the under § 180 . 135 . offenses listed in § 180 . 800 ( a) ; or next lower tier, you must verify that the ( d) Have had one or more public person with whom you intend to do § 180 ,320 Must I verity that principals of transactions (Federal , State , or local) business is not excluded or disqualified. my covered transactions are eligible to terminated within the preceding three You do this by : participate? years for cause or default. ( a) Checking the EPLS ; or Yes , you as a participant are (b ) Collecting a certification from that responsible for determining whether § 180340 if I disclose unfavorable person if allowed by the Federal agency any of your principals of your covered information required under § 180.335 , will I responsible for the transaction; or tr prevented from participating in the (c) Adding a clause or condition to the transactions is excluded or disqualified transaction? covered transaction with that person. from participating in the transaction. As a primary tier participant, your You may decide the method and disclosure of unfavorable information § 180 .305 May { enter into a covered frequency by which you do so . You about yourself or a principal under transaction with an excluded or disqualified may , but you are not required to , check § 180 . 335 will not necessarily cause a person? the EPLS . Federal agency to deny your (a) You as a, participant may not enter into a covered transaction with an § 160.325 What happens III do business participation in the covered transaction , with an excluded person in a covered The agency will consider the excluded person , unless the Federal transaction? information when it determines whether agency responsible for the transaction If as a participant you knowingly do to enter into the covered transaction. grants an exception under § 180 . 135 . ('o) You may not enter into any business with an excluded person , the The agency will also consider any transaction with a person who is Federal agency responsible for your additional information or explanation disqualified from that transaction, transaction may disallow costs , annul or that you elect to submit with the terminate the transaction , issue a stop disclosed informationi unless you have obtained an exception or suspend you , or § 180 ,345 What happens if I fail to disclose under the disqualifying statute , work order , debar. take other remedies as appropriate . Executive order , or regulation , information required under § 180.335? § 180310 What must I do it a Federal § '180 .330 What requirements must I pass If a Federal agency later determines agency excludes a person with whom I am down to persons at lower tiers with whom that you failed to disclose information already doing business In a covered I intend to do business? under § 180 . 335 that you knew at the transaction ? Before entering into a covered time you entered into the covered (a) You as a participant may continue transaction with a participant at the transaction , the agency may— covered transactions with an excluded next lower tier , you must require that (a) Terminate the transaction for person if the transactions were in participant to— material failure to comply with the existence when the agency excluded the (a) Comply with this subpart as a terms and conditions of the transaction person. However , you are not required condition of participation in the or to continue the transactions , and you transaction. You may do so using any (b) Pursue any other available may consider termination . You should method(s) , unless the regulation of the remedies , including suspension and make a decision about whether to Federal agency responsible for the debarment. Federal Register / Vol. 70 , No . 168 / Wednesday , August 31 , 2005 / Rules and Regulations 51871 § 180.350 What must i do It i learnof disqualified from that transaction, § 180.425 When do I check to see if a information required under § 180.335 after unless you obtain a waiver or exception person is excluded or disqualified ? entering into a covered transaction with a under the statute , Executive order, or As a Federal agency official , you must Federal agency? regulation that is the basis for the check to see if a person is excluded or At anv time after you enter into a person' s disqualification . disqualified before you— Covered transaction, ,you must give (a) Enter into a primary tier covered immediate written notice to the Federal § 180.405 May I enter into a covered transaction ; agency office with which you entered transection with a participant If a principal (b ) Approve a principal in a priman' into the transaction if you learn either of the transaction is excluded? tier covered transaction ; that— As a Federal agency official, you may (c) Approve a lower tier participant if ( a , You failed to disclose information not enter into a covered transaction with your agency ' s approval of the lower tier garner , as required by § 180 . 335 ; or a participant if you know that a participant is required ; or (b) Due to changed circumstances , principal of the transaction is excluded , (d) Approve a principal in connection you or any of the principals for the unless you obtain an exception under with a lower tier transaction if vour transaction now meet any of the criteria § 280 . 135 . agency ' s approval of the principal is in § 180 , 335 . required . Disclosing Information—Lower Tier § 180A10 May I approve a participant' s use of the services of an excluded person? § 180.430 How do I check to see If a Participants person is excluded or disqualified? After entering into a covered You check to see if a arson is § 180.355 What Information must I provide transaction with a participant, you as a or p to a higher tier participant before entering Federal agency official may not rove ex(a) You as a1Federal ageriml official ed in two ways : Into a covered transaction with that g y Y PP participant? a participant ' s use of an excluded must check the EPLS when you take any Before you enter into a covered person as a principal under that action listed in § 180 .425 , transaction with a person at the next transaction , unless you obtain an (b ) You must review information that higher tier, you as a lower tier exception under § 180 . 135 . a participant gives you , as required by participant must notify that person i£' § 180 .415 What must Ido If a Federal § 160 . 335 , about its status or the status you know that you or any of the agency excludes the participant or a of the principals of a transaction . principals are presently excluded or principal after I enter into a covered § 18DA35 What must I require of a primary disqualified . transaction? tier participant? § 180.360 What happens If I fail to disclose (a) You as a Federal agency official You as a Federal agency official must information required under § 180.355? may continue covered transactions with require each participant in a primary If a Federal agency later determines an excivaed person , or under which an tier covered transaction to— that you failed to tell the person at the excluded person is a principal , if the (a ) Comply with subpart C of this part higher tier that you were excluded or transactions were in existence when the as a condition of participation in t'rie disqualified at the time you entered into person was excluded . You are not transaction ; and the covered transaction with that required to continue the transactions , (b) Communicate the requirement to person , the agency may pursue any however , and you mail consider comply with Subpart C of this part to available remedies , including termination . You should make a persons at the next lower tier with suspension and debarment. decision about whether to terminate and whom the primary tier participant the type of termination action , if any , enters into covered transactions . 9180.365 What must I do if I ieam of only after a thorough review to ensure Information required under § 180.355 afterthat the action is roer . § 180.440 What ection may 1 take If a entering Into a covered transaction with a pp . primary tier participant knowingly does higher tier participant? (b ) You may not renew or extend business with an excluded or disqualified At any time after you enter into a covered transactions (other than no-cost person? lower tier covered transaction with a time extensions ) with any excluded If a participant knowingly does person at a higher tier , you must person , or under which an excluded business with an excluded or provide immediate written notice to that person is a principal , unless you obtain disqualified person , you as a Federal person if you learn either that— an exception under § 180 . 1350 agency official may refer the matter for (a) You failed to disclose information § 180.42D May I approve a transaction with suspension and deoarment earlier , as required by § 180 . 355 ; or consideration. You may also disallow an excluded or disqualified person at a (b ) Due to changed circumstances , lower tier? costs , annul or terminate the you or any of the principals for the transaction, issue a stop work order, or transaction now meet any of the criteria if a transaction at a lower tier is take any other appropriate remedy . in § 180 . 355 , subject to your approval , you as a Federal agency official may not § 180.445 What action may I take it a Subpart D- Responsibif fties of Federal approve— primary tier participant fails to disclose the Agency Officials Regarding information required under § 180.335? (a) A covered transaction with a enc If you as a Federal a official Transactions person who is currently excluded , determine agency determine gnat. a participant failed to § 1806400 May I enter into a transaction unless you obtain an exception under disclose information , as required by with an excluded or disqualified person ? § 180 .135 ; or § 180 . 335 , at the time it entered into a (a) You as a Federal agency official (b) A transaction with a person who covered transaction with you , you may not enter into a covered transaction is disqualified from that transaction , mal;— with an excluded person unless you unless you obtain a waiver or exception ( a) Terminate the transaction for obtain an exception under § 180 . 1356 under the statute , Executive order, or material failure to comply with the (b ) You may not enter into any regulation that is the basis for the terms and conditions of the transaction; transaction with a person who is person' s disqualification , or 51872 Federal Register / Vol . 70 , No , 168 / Wednesday , August 31 , 2005 / Rules and Regulations (b) Pursue any other available debarment and suspension system, the disqualified person , including the social remedies , including suspension and agency enters the information about the security number ( SSN) for an debarment. & excluded person into the EPLS , individual , if the number is available and may be disclosed under law ; § 180.450 What action may I take If a lower § 180.515 What specific information Is in tier participant fails to disclose the the EPLS? ( c) information about an excluded or information requited under § 180.355 to the (a) At a minimum , the EPLS disqualified person, generally within next higher tier? indicates— five working days , after— If you as a Federal agency official ( 1 ) The full name (where available) (1 ) Taking an exclusion action ; determine that a lower tier participant and address of each excluded and (2 ) Modifying or rescinding an failed to disclose information, as disqualified. person , in alphabetical exclusion action; required by § 180 . 355 , at the time it order , with cross references if more than ( 3) Finding that a person is entered into a covered transaction with one name is involved in a single action; disqualified ; or a. participant at the next higher tier , you (2) The type of action ; (4 ) Finding that there has been a may pursue any remedies available to (3 ) The cause for the action; you , including the initiation of a (4 ) The scope of the action; change in the status of a person who is suspension or debarment action . ( 5 ) Any termination date for the listed as disqualified . action; § 180.525 Whom do t ask if 1 have Subpart E—Excluded Parties List (5 ) The Federal agency and name and questions about a person in the EPLS? System telephone number of the agency point of contact for the action; and If you have questions about a listed § 180.500 What is the purpose of the q The Dun 'and Bradstreet Number person in the EPLS , ask the point. of Excluded Parties List System (EPLS)? (DUNS) , or other similar code approved contact for the Federal agency that The EPLS is a widely available source by the GSA, of the excluded or placed the person ' s name into the EPLS . of the most current information about disqualified person , if available . You may find the agency point of I who are excluded or (b) ( 1 ) The database for the EPLS contact from the EPLS , disqualified from covered transactionsa includes a field for the Taxpayer § 180,530 Where can I find the EPLS . § 180,505 Who uses the EPLS? Identification Number (TIN) (the social You may access the EPLS through the (a) Federal agency officials use the security number (SSN) for an Internet, currently at http :// EPLS to determine whether to enter into individual} of an excluded or a Is .arnet. ov or htf //www. e ls .,uovl a transaction with a person, as required disqualified person. P g A ' p under § 180 .430 . ( 2) Agencies disclose the SSN of an Subpart F—General Principles Relating (b) Participants also may , but are not individual to verify the identity of an to Suspension and Debarment Actions required to , use the EPLS to determine individual , only if permitted under the if- Privacy Act of 1974 and , if appropriate , § 180.600 How do suspension and ( 1 ) Principals of their transactions are the Computer Matching and Privacy debarment actions start? excluded or disqualified, as required Protection Act of 1988 , as codified in 5 When Federal agency officials receive under § 1800320; or U .S . C . 552 (a)" information from any source concerning ( 2) Persons with whom they are entering into covered fransactions at the § 18D.520 Who places the infomretion Into a cause for suspension or debarment, next tower tier are excluded Li the EPLS? they will promptly report it and the dext lower ti Federal agency officials who take agency will investigate, The officials (c) The EPLS is available to the actions to exclude persons under this refer the question of whether to suspend general public . part or officials who are responsible for or debar you to their suspending or identifying disqualified persons must debarring official for consideration , if § 180.510 Who maintains the EPLS? enter the following information about appropriate . The General Services Administration those persons into the EPLS : § 180,605 How does suspension differ (GSA) maintains the EPLS . When a (a) Information required by from debarment.? Federal agency takes an action to § 18i) .515 (a) ; exclude a person under the (b ) The Taxpayer Identification Suspension differs from debarment in nonprocuremen.t or procurement Number (TIN) of the excluded or thaI A suspending official P . . A debarring official (a) imposes suspension as a temporary status of in eligibility for pro- imposes debarment for a specified period as a final determination that curement and nonprocurement transactions , pending completion of a person is not presently responsible6 an investigation or legal proceedings . (b) Musi-- ( 1 ) Have adequate evidence that there may be a cause for debar- a ment of a person; and (2) Conclude that immediate action is necessary to protect the I Must conclude , based on a preponderance of the evidence, that the Federal interestperson has engaged in conduct that warrants debarment. io (c) Usually imposes the suspension first, and then promptly notifies the imposes debarment after giving the respondent notice of the actn suspended person, giving the person an opportunity to contest the and an opportunity to contest the proposed debarments suspension and have it lifted Federal Ree ster / Vol . 70 . No . 168 / Wednesday , August 31 , 2005 / Rules and Regulations 51873 §180.6I0 What procedures does a Federal §I80 .630 Maya Federal agency impute the § 180e645 Do other Federal agencies know agency use in suspension and debarment conduct of one person to another? if an agency agrees to a voluntary actions? exclusion? In deciding whether to suspend or For purposes of actions taken under (a ) Yes , the Federal agency agreeing to debar you , a Federal agency handles the this part, Federal agenc }r may impute; conduct ass the voluntary exclusion enters actions as informally as practicable , follows : information about it into the EPLS4 consistent with principles of (a.) Conduct imputed from an (b) Also , any agency or person may fundamental fairness , individual to an organization . A Federal contact the Federal agency that agreed ( a) For suspension actions , a Federal agency may impute the fraudulent , to the voluntary exclusion to find out agency uses the procedures in this criminal , or other improper conduct of the details of the voluntary exclusion , subpart and Subpart G of this pari, any officer , director , shareholder , partner , employee , or other individual Subpart G—Suspension ( b ) For debarment actions, a Federal associated with an organization , to that agency uses the procedures in this § 180 .700 When may the suspending subpart and Subpart H of this Dart , organization when the improper official issue a suspension ? conduct occurred in connection with Suspension is a serious action . Using § 180 ,615 How does a Federal agency the individual ' s performance of duties the procedures of this subpart and notify a person of a suspension or for or on behalf of that organization , or Subpart F of this part, the suspending debarment action? with the organization ' s knowledge , official may impose suspension only ( a) The suspending or debarring approval or acquiescence , The when that official determines that— official sends a written notice to the last organization ' s acceptance of the benefits ( a) There exists an indictment for , or known street address , facsimile number , derived from the conduct is evidence of other adequate evidence to suspect, an or e-mail address of— knowledge , approval oracquiescence . offense listed under § 180 .800(a) , or ( 1 ) You or your identified counsel ; or (b ) Conduct imputed from an (b) There exists adequate evidence to t organization to an individual, or suspect any other cause for debarment ( 2 ) Your agent for service o process , G listed under § 180 . 800 (b) through (d ) ; -or any of your partners , officers , between individuals . A Federal agency and directors , owners , or joint venturers , may impute the fraudulent, criminal , or ( c) Immediate action is necessary to (b) The notice is effective if sent to other improper conduct of any protect the public interest, any of these persons , organization to an individual , or from one individual to another individual , if § 180 .705 What does the suspending § 180.620 Do Federal agencies coordinate the individual to whom the improper official consider in issuing a suspension? suspension and debarment actions? conduct is imputed either participated (a) In determining the adequacy of the Yes , when more than one Federal in , had knowledge of, or reason to know evidence to support the suspension , the agency has an interest in a suspension of the improper conduct. suspending official considers how much or debarment , the agencies may ( c ) Conduct imputed from one information is available , how credible it consider designating one agency as the organization to another organization . A is given the circumstances , whether or lead agency for making the decision . Federal agency may impute the net important allegations are at inferences can methods and proAgencies are ced encouraged for to fraudulent,fraudulent, criminal , or other improper re sonablcorroboray be drawn d , and has a result During coordinating their suspension and conduct of one organization to another this ssessment , the suspending official debarment actions . organization when the improper may examine the basic documents , conduct occurred in connection with a including grants , cooperative § 180.625 What is the scope of a partnership , joint venture , joint agreements , loan authorizations , suspension or debarment? application , association or similar contracts , and other relevant If you are suspended or debarred , the arrangement, or when the organization documents. suspension or debarment is effective as to whom the improper conduct is (b ) An indictment . conviction , civil follows : imputed has the power to direct, judgment, or other official findings by ( a) Your suspension or debarment manage , control or influence the Federal , State , or local bodies that constitutes suspension or debarment of activities of the organization responsible determine factual and/or legal matters , all of your divisions and other for the improper conduct. Acceptance of constitutes adequate evidence for organizational elements from all the benefits derived from the conduct is purposes of suspension actions . covered transactions , unless the evidence of knowledge , approval or (c ) In deciding whether immediate suspension or debarment decision is acquiescence . action is needed to protect the public limited— interest , the suspending official has § 180.635 May a Federal agency settle a wide discretion , For example , the ( 1 ) By its terms to one or more debarment or suspension action? suspending official may infer the specifically identified individuals , divisions , or other organizational eraagency'yes , a Federal settle a necessity for immediate action to y ma y elements ; or debarment or suspension action at any protect the public interest either from time if it is in the best interest of the the nature of the circumstances gluing ( 2 ) To specific types of transactions , Federal Government, rise to a cause for suspension or from (b) Any affiliate of a participant may potential business relationships or be included in a suspension or § 180.64D Maya settlement include a involvement with a program of the debarment action if the suspending or voluntary exclusion? Federal Government, debarring official— Yes , if a Federal agency enters into a § 180.710 When does a suspension take ( 1 ) Officially names the affiliate in the settlement with you in which you agree effect? notice ; and to be excluded , it is called a voluntary A suspension is effective when the ( 2) Gives the affiliate an opportunity exclusion and has governmentwide suspending official signs the decision to to contest the action . effect. suspend. 51874 Federal Register / Vol. 70 , No . 168 / Wednesday , August 31 , 2005 / Rules and Regulations § 180m715 What notice does the agency sends it if the facsimile is on the same facts as the suspension suspending official give me if I am undeliverable ; or would be prejudiced by conducting facto suspended ? ( 3) When delivered, if the agency finding . After deciding to suspend you , the sends the notice by e-mail or five days (b) You will have an opportunity to suspending official promptly sends youafter the agency sends it if the e-mail is challenge the facts if the suspending a Notice of Suspension advising you— undeliverable , official determines that— ( a) That you have been suspended ; (1) The conditions in paragraph ( a) of (b ) That your suspension is based § 180 ,730 what information must i provide this section do not exist; and to the suspending official if I contest the (2 } Your presentation in opposition on— suspension? ( 1 ) An indictment; raises a genuine dispute over facts (2 ) A conviction ; (a) In addition to any information and material to the suspension. ( 3 ) Other adequate evidence that you argument in opposition , as a respondent ( c) If you have an opportunity to have committed irregularities which your submission to the suspending challenge disputed material facts under seriously reflect on the propriety of official must identify--- this section , the suspending official or further Federal Government dealings ( 1) Specific facts that contradict the designee must conduct additionai with you ; or statements contained in the Notice of Droceedings to resolve those facts . (4) Conduct of another person that has insufficient n. A general denial is been imputed to you , Or your affiliation insufficient to raise a genuine dispute § 180140 Are suspension proceedings facts material to the suspension; format? with a suspended or debarred person ; over (2) All existing , proposed , or prior (a) Suspension proceedings are ( c) Of any other irregularities in terms regulations conducted in a fair and informal re exclusions under sufficient to put you an notice without g disclosing the Federal Government ' s implementing Executive Order 12549 manner . The suspending official may evidence ; and all similar actions taken by Federal , use flexible procedures to allow you to ( d) Of the cause (s) upon which the State , or local agencies , including present matters in opposition. In so suspending official relied under administrative agreements that affect doing, the suspending official is not § 180 , 700 for imposing suspension; only those agencies ; required to follow formal rules of (e ) That your suspension is fora (3 ) All criminal and civil proceedings evidence or procedure in creating an temporary period ending the not included in the Notice of official record upon which the official completion of an investigation or Suspension that grew out of facts will base a final suspension decision. resulting legal or debarment relevant to the cause(s) stated in the (b) You as a respondent or your proceedings ; notice ; and representative must submit any ( f) Of the applicable provisions of this (4 ) All of your affiliates . documentary evidence you want the subpart, Subpart F of this part , and any (b) If you fail to disclose this suspending official to consider. Other agency procedures governing information, or provide false § 1 $0,745 How is tact-finding conducted ? suspension decisionmaking; and information , the Federal agency taking a If fact-finding ' s conducted— (g) Of the governmentwirie effect of the action may seek further criminal , O o your suspension from procurement and civil or administrative action against ( 1) You may present witnesses and ro riate. other evidence , and confront any nonprocurement programs and You , as a pp p witness presented; and activities , § 180.735 under what conditions do I get (2) The fact-finder must prepare § 180 .72D How may I contest a an additional opportunity to challenge the written findings of fact for the record. suspension? facts on which the suspension is hased7 (b) A transcribed record of facto if you as a respondent wish to contest (a) You as a respondent will not have finding proceedings must be made , an additional opportunity to challenge unless you as a respondent and. the a suspension , yeti or your representative the facts if the suspending official Federal agency agree to waive it in must provide the suspending official determines that— advance. If you want a copy of the with information in apposition to the ( 1) Your suspension is based upon an transcribed record , you may purchase it. suspension . You may do this orally or indictment , conviction , civil judgment, in writing , but any information or other finding by a Federal , State , or § 180.750 What does the suspending provided orally that you considerlocal body for which an opportunity to official consider in deciding whether to important must also be submitted in contest the facts was provided; continue or terminate my suspension? writing for the official record , (2 ) Your presentation in opposition ( a) The suspending official basest e § 180125 How much time dol have to contains only general denials to decision on all informauan contained in contest a suspensionl information contained in the Notice of the official record. The record (a) As a respondent you or your Suspension ; includes— representative must either send , or make (3 ) The issues raised in your (1 ) All information in support of the arrangements to appear and present , the presentation in opposition to the suspending official' s initial decision to information and argument to the suspension are not factual in nature , or suspend you; further information and suspending Official within 30 days after are not material to the suspending l ) Y you receive the Notice of Suspension. official 's initial decision to suspend , or argument presented s support n or it (h) The Federal agency taking the the official' s decision whetherto °p 3OSAn trans1 ion to , cribedPeco d of fact- action considers the notice to De continue the suspension ; or O Y received by you— (4 ) On the basis of advice from the finding proceedings . ( 1 ) When delivered, if the agency Department of Justice , an Office of the sp The suspending official may refer mails the notice to the last known street United States Attorney , a State att reeorney disputed material facts Ya another address , or five days after the agency general' s office , or. a State or local official s cial for findings of fact. The sends if the letter is undeliverable ; prosecutor' s office , that substantial suspending official e cial may reject any ( 2 ) When sent, the agency sends the interests of the government in pending resulting findings , in whole or in part, notice by facsimile or five days after the or contemplated legal proceedings based only after specifically determining them Federal Register / Val . 70 , No . 168 / Wednesday , August 31 , 2005 / Rules and Regulations 51875 to be arbitrary , capricious, or clearly directly affects your present any other agency procedures governing erroneous . respponsibility ; debarment ; and (b ) Violation of the terms of a public ( e) Of the governmentwide effect of a § 180 ,755 When will I know whether the agreement or transaction so serious as to debarment from procurement and suspension is continued or terminated? affect the integrity of an agency nonprocurement programs and The suspending official must make a program . such as— activities . written decision whether to continue , (1 ) A willful failure to perform in 180 .810 When does a debarment take modify , or terminate your suspension accordance with the terms of one or effect? within 4. 5 days of closing the official more public agreements or transactions ; Unlike suspension , a debarment is not record. The official record closes upon ( 2 ) A history of failure to perform or P the suspending official ' s receipt of final of unsatisfactory performance of one or effective until the debarring official submissions , information and findings more public agreements or transactions ; issues a decision. The debarring official of fact , if any . The suspending official or does not issue a decision until the may extend that period for good cause . ( 3 ) A willful violation of a statutory or respondent has had an opportunity to regulatory provision or requirement contest the proposed debarment. § 180 .760 How long may my suspension applicable to a public agreement or § 180 815 How may i contest a proposed lest? transaction ; debarment? (a) If legal or debarment proceedings (c ) Anv of following causes : h you as a respondent wish to contest are initiated at the time of , or during (1 ) A nonprocurement debarment by proposed debarment , you or your your suspension , the suspension may any Federal agency taken before October a pro representative must provide the continue until the conclusion of those 1 , 1988 , or a procurement debarment by debarrin official with information in proceedings . However , if proceedings any Federal agency taken pursuant to 48 g are not initiated , a suspension may not CFR part 9 , subpart 9 .4 , before August opposition to the proposed debarment . exceed 12 months . 25 . 1995 ; You may do this orally or in writing , but (b ) The suspending official may ( 2) Knowingly doing business with an any information provided orally that extend the 12 month limit under ineligible parson , except as permitted you consider important must also be submitted in writing for the official paragraph ( a) of this section for an under § 180 . 135 ; additional 6 months if an office of a U . S . ( 3 ) Failure to pay a single substantial record . Assistant Attornev General , U .S . debt , or a number of outstanding debts § 180,820 How much time do 1 have to Attorney , or other responsible (including disallowed costs and contest a proposed debarment? prosecuting official requests an overpayments , but not including sums (a) As a respondent you or yow extension in writing . In no event may a owed the Federal Government under the representative must either send , or make suspension exceed 18 months without Internal Revenue Code) owed to any arrangements to appear and present, the initiating proceedings under paragraph Federal agency or instrumentality , information and argument to the ( a ) of this section, provided the debt is uncontested by the debarring official within 30 days after ( c ) The suspending official must debtor or , if contested, provided that the you receive the Notice of Proposed notify the appropriate officials under debtor ' s legal and administrative Debarment. paragraph (b ) of this section of an remedies have been exhausted; (h) The Federal agency taking the impending termination of a suspension ( 4 ) Violation of a material provision of action. considers the Notice i Proposed at least 30 days before the 12 month a voluntary exclusion agreement entered Debarment to considers the Nott by f Pro period expires to allow the officials an into under § 180 .840 or of any ( 1 ) When delivered , if the agency opportunity to request an extension. settlement of a debarment or suspension mails the notice to the last known street action ; or address , or live days after the agency Subpart K—Debarment ( 5 ) Violation of the provisions of the Drug-Free Workplace Act of 198P. (41 sends it if the letter is undeliverable ; § 180 .800 What are the causes for U Drug-Free 7p1 ) ; or (2) When sent , if the agency sends the debarment? ( d) Any other cause of so serious or notice by facsimile or five days after the A Federal agency may debar a person. compelling a nature that it affects your agency sends it if. the facsimile is for— present responsibility , undeliverable ; or (a) Conviction of or civil judgment ( 3 ) When delivered , if the agency for- § 180F805 What notice does the debarring sends the notice by e-mail or five days ( 1 ) Commission of fraud or a criminal official give me If i am proposed for after the agency sends it if the e-mail is offense in connection with obtaining , debarment? undeliverable , attempting to obtain , or performing a After consideration of the causes in 180.825 What information must I provide public or private agreement or § 180 . 800 , if the debarring official the debarring official if 1 contest the transaction ; proposes to debar you , the official sends proposed debarment? ( 2 ) Violation of Federal or State you e Notice of Proposed Debarment , ( In addition to any information and antitrust statutes , including those pursuant to § 180 . 615 , advising you- u proscribing price fixing between (a) That the debarring official is argument in apposition , as a respondent competitors , allocation of customers considering debarring you ; your submission to the debarring official N etween competitors , and bid rigging; (b ) Of the reasons for proposing to must identify— ( 3 ) Commission of embezzlement, debar you in terms sufficient to put you ( 1 ) Specific facts that contradict the theft , forgery , bribery , falsification or on notice of the conduct or transactions statements contained in the Notice of destruction of records , making false upon which the proposed debarment is Proposed Debarment. Include any statements , tax evasion, receiving stolen based; information about any of the factors property , making false claims , or ( c) Of the cause (s) under § 180 .800 listed in § 180 , 860 . A general denial is obstruction of justice ; or upon which the debarring official relied insufficient to raise a genuine dispute (4) Commission of any other offense for pproposing your debarment; over facts material to the debarment; indicating a lack of business integrity or ( d) Of the applicable provisions of (2) All existing, proposed , or prior business honesty that seriously and this subpart , Subpart F of this part, and exclusions under regulations 51876 Federal Register / Vol . 701 No . i68 / Wednesday , August 31 , 2005 / Rules and Regulations implementing Executive Order 12549 § 180.840 maw is fact-finding conducted ? official may consider in determining and all similar actions taken by Federal, ( a) If fact-finding is conducted— whether to debar you and the length of State , or local agencies , including ( 1 ) You. may present witnesses and your debarment period. The debarring administrative agreements that affect other evidence , and confront any official may consider other factors if only those agencies ; witness presented; and appropriate in light of the circumstances ( 3 ) All criminal and civil proceedings ( 2) The fact-finder must prepare of a particular case . The existence or not included in the Notice of Proposed written findings of fact for the record , nonexistence of any factor , such as one Debarment that grew out e facts (b) A transcribed record of fact- of those set forth in this section , is not relevant to the cause (s ) stated is the finding proceedings must be made , necessarily determinative of your notice ; and unless you as a respondent and the present responsibility. In malting a All of your affiliates . Federaf agency agree to waive it in debarment decision, the debarring ( advance . if you want a copy of the official may consider the following (b) If you fail to disclose this transcribed record, you may purchase it. factors : information , or provide false (a) The actual or potential harm or information , the Federal agency taking § 180.845 What does the debarring official impact that results or may result from the action may seek further criminal , consider in deciding whether to debar me • the wrongdoing . civil or administrative action against. (a) The debarring official may debar (b) The frequency of incidents andior you , as appropriatel you for any of the causes in § 180 .800 . duration of the wrongdoing , However , the official need not debar (c) Whether there is a pattern or prior § 180,830 Under what conditions do I get you even if a cause for debarment exists . history of wrongdoing . For example , if an additional opportunity to challenge the The official may consider the you have been found by another Federal facts on which the proposed debarment is seriousness of your acts or omissions agency or a State agency to have based ? and the mitigating or aggravating factors a) You as a respondent will not have engaged in wrongdoing similar to that ( P set forth at § 180. 860 . found in the debarment action , the an additional opportunity to challenge (b ) The debarring official bases the existence of this fact maybe used by the the facts if the debarring official decision on all information contained in debarring official in determining that determines that- the official record. The record you have a pattern or prior history of ( 1 ) Your debarment is based upon a includes— wrongdoing . conviction or civil judgment; ( 1 ) All information in support of the ( d) Whether you are or have been ( 2) Your presentation in opposition debarring official ' s proposed debarment; excluded or disqualified by an agency of contains only general denials to (2) Any further information and information contained in the Notice of argument presented in support of, or in the Federal Government or have not opposition to , the proposed debarment; been allowed to participate in State or o Proposed Debarment ; or local contracts or assistance agreements opP (3 ) The issues raised in your d on a basis of conduct similar to one or presentation in opposition to the ( 3 ) Any transcribed record of fact- more of the causes for debarment proposed debarment are not factual in finding proceedings, nature , or are not material to the (c) The debarring official may refer specified in this part, disputed material facts to another (e) Whether you have entered into an debarring official ' s decision whether to official for findings of fact. The administrative agreement with a Federal debar. debarring official may reject any agency or a State or local government (b ) You will have an additional resultant findings , in whole or in part, that is not gavernmentwide but is based opportunity to challenge the facts if the only after specifically determining them on conduct similar to one or more of the debarring official determines that— to be arbitrary , capricious , or clearly causes for debarment specified in this ( 1 ) The conditions in paragraph (a) of erroneous , part. Whether and to what extent you this section do not exist; and (2 ) Your presentation in opposition § 180 .85o What is the standard of proof in planned , initiated , or carried out the a debarment action? wron doin . raises a genuine dispute over facts g material to the proposed debarment. ( a) In any debarment action, the (g) What er you have accepted (c) If you. have an opportunity to Federal agency must establish the cause responsibility for the wrongdoing and challenge disputed material facts tinder for debarment by a preponderance of the recognize the seriousness of the this section, the debarring official or evidence . misconduct that led to the cause for designee must conduct additional (b) If the proposed debarment is based debarment, proceedings to resolve those facts . upon a conviction. or civil judgment, the (h) Whether you have paid or agreed standard of proof is met , to pay all criminal , civil and § 180 ,935 Are debarment proceedings administrative liabilities for the formai ? § 180.855 Who has the burden of proof in improper activity , including any a debarment action? investigative or administrative costs ( a) Debarment proceedings are (a) The Federal agency has the burden g conducted in a fair and informal to that a cause for debarment incurred by the government , and have o p manner . The debarring official may use made or theod to make full restitution. exists , (i) Whether you have cooperated fully flexible procedures to allow you as a (b) Once a cause for debarment is with the government agencies during respondent to present matters in established , you as a respondent have opposition. In so doing , the debarring the burden of demonstrating to the the investigation and any court i official is not required to follow formal satisfaction of the debarring official that administrative action. In determining rules of evidence or procedure in you are presently responsible and that the extent of cooperation , the debarring creating an official record upon which debarment is not necessary, official may consider when the the official will base the decision cooperation began and whether you whether to debar. § 180 .860 What factors may influence the disclosed all pertinent information (b) You or your representative must debarring official's decision ? known to you5 submit any documentary evidence you This section lists the mitigating and (j ) Whether the wrongdoing was want the debarring official to consider. aggravating factors that the debarring pervasive within your organization. . Federal Register / Vol , 70 , No , 168 / Wednesday , August 31 , 2005 / Rules and Regulations 51877 (k) The kind of positions held by the f1 ) Not to debar you; or § 180.905 Affiliaw individuals involved in the wrongdoing . ( 2 ) To debar you . In this event, the Persons are affiliates of each other if, ( 1 ) Whether your organization took notice ; directly or indirectly , either one appropriate corrective action or ( i) Refers to the Notice of Proposed controls or has the power to control the remedial measures , such as establishing Debarment ; other or a third person controls or has ethics training and implementing (ii ) Specifies the reasons for your the power to control both. The ways e programs to prevent recurrence . debarment ; Federal agency may determine control ( m) Whether your principals tolerated (iii ) States the period of your include , but are not Limited to— the offense . debarment, including the effective ( a) Interlocking management or ( n ) Whether you brought the activity dates ; and ownership ; cited as a basis for the debarment to the ( iv) Advises you that your debarment (b) Identity of interests among family attention of the appropriate government is effective for covered transactions and members ; agency in a timely manner . contracts that are subject to the Federal ( o), Whetheryou have fully Acquisition Regulation ( 48 CFR chanter ( c ) Shared facilities and equipment ; investigated the circumstances 1 ) , throughout the executive branch of ( d) Common use of employees ; or surrounding the cause for debarment the Federal Government unless an ( e ) A business entity which has been and , if so , made the result or the agency head or an authorized designee organized fallowing the exclusion of a investigation available to the debarring grants an exception. person which has the same or similar official . management, ownership , or principal (p ) Whether you had effective § 180.875 May I ask the debarring official employees as the excluded person. standards of conduct and internal to reconsider a decision to debar me? § 180.910 Agent or representative, control systems in place at the time the Yes , as a debarred person you may ask questioned conduct occurred . the debarring official to reconsider the Agent or representative means any (q ) Whether you have taken debarment decision or to reduce the person who acts on behalf of, or who is appropriate disciplinary, action against time period or scope of the debarment, authorized to commit a participant in s the individuals responsible for the However, you must put your request in covered transacurd on . activity which constitutes the cause for writing and support it with § 180.915 Civii judgment. debarment. documentation . Civil judgment means the disposition (r) Whether you have had adequate § 1180o880 What factors may influence the of a civil action by any court of time to eliminate the circumstances debarring official during reconsideration ? competent jurisdiction, whether by within your organization that led to the The debarring official may reduce or verdict , decision , settlement, cause for the debarment, terminate your debarment based on— stipulation , other disposition which ( s) Other factors that are appropriate ( a) Newly discovered material creates a civil liability for the to the circumstances of a particular case , evidence ; complained of wrongful acts , or a final § 180.965 Haw Yong may my debarment (b ) A reversal of the conviction or determination of liability under the last? civil judgment upon which your Program Fraud Civil Remedies Act of ( a) If the debarring official decides to debarment was based ; 1988 ( 31 U .S . C . 3801 -3812 ) . debar you , your period of debarment (c ) A bona fide change in ownership will be based on the seriousness of the or management ; § 180920 Conviction. cause(s ) upon which your debarment is ( d) Elimination of other causes for Conviction means— based . Generally , debarment should not which the debarment was imposed ; or (a) A judgment or anv other exceed three years . However , if ( e) Other reasons the debarring official determination of guilt of a criminal finds appropriate . circumstances warrant, the debarring offense by any court of competent official may impose a longer period of § 180385 May the debarring official extend jurisdiction , whether entered upon debarment. a debarment? verdict or plea, including a plea of nolo (b) In determining the period of ( a) Yes , the debarring official may contendere ; or debarment , the debarring official may extend a debarment for an additional (b) Any other resolution that is the consider the factors in § 180.860 . If aperiod , if that official determines that an functional equivalent of a judgment , suspension has preceded vour extension. is necessary to protect the including probation before judgment debarment, the debarring official must public interest. and deferred prosecution . A disposition consider the time you were suspended . (b ) However , the debarring official without the participation of the court is (c) If the debarment is for a violation may not extend a debarment solely on the functional equivalent of a judgment of the provisions of the Drug-Free the basis of the facts and circumstances only if it includes an admission of guilt. Workplace Act of 1988 , ,your period of upon which the initial debarment action § 180.925 Debarment. debarment may not exceed five years . was based. Debarment means an action taken b § 180 .870 When do I know if the debarring ( c ) If the debarring officio] decides a debarring official under Subpart H of official debars me? that a debarment for an additional g a period is necessary , the debarring this part to exclude a person from (a) The debarring official must make bficiaL must follow the applicable participating in covered transactions El written decision whether to debar procedures in this subpart, and Subpart and transactions covered under the within 45 days of closing the official F of this part, to extend the debarment. Federal Acquisition Regulation (48 CFR record . The official record closes upon chapter 1 ) . A person so excluded is the debarring official ' s receipt of final Subpart I—Definitions debarred . submissions , information and findings of fact, if any . The debarring official § 180 .900 Adequate evidence. § 180.930 Debarring official. mayy extend that period for good cause . Adequate evidence means Debarring official means an agency (b ) The debarring official sends you information sufficient to support the official who is authorized to impose written notice , pursuant to § 180 , 615 reasonable belief that a particular act or debarment. A debarring official is that the official decided , either— omission has occurred. either— No , 168 / Wednesday , August 31 , 2005 ! Rules and Regulations 51878 Federal Register / Vol . 70 , (a) The agency head; or § 180.965 Legal proceedings. (1) is in a position to handle Federal (b ) An official designated by the Legal proceedings means any criminal funds , agency hears. proceeding or any civil judicial ( 2) Is in a position to influence or proceeding, including a proceeding control the use of those funds ; or , § 10 .936 Disqualified. under the Program Fraud Civil (3) Occupies a technical or Disqualified means that a person is Remedies Act (31 U. S .C . 3801-3812 ) , to professional position capable of prohibited from participating in which the Federal Government or a. substantially influencing the specified Federal procurement or State or local government or quasi development or outcome of an activity nonptocurement transactions as governmental authority is a party . The required to perform the covered required under a statute . Executive term also includes appeals from those transaction. order (other than Executive Orders proceedings . § 180 ,1000 Respondent. 12549 and 12689) or other authority . Examples of disqualifications include § 180,970 Nonprocurement transaction. Respondent means a person against (a) Nonprocurement transaction whom an agency has initiated a persons prohibited under— (a) The Davis-Bacon Act (40 U . S .C. means any transaction , regardless of debarment or suspension action. 2176 (a)) ; type (except procurement contracts ) , (b) The equal emplovment including, but not limited to the § 180.1005 State. opportunity acts and Executive orders ; following: ( a) ' State means— ( 1 ) Grants . (1 ) Anv of the states of the United or (c) The Clean Air Act (4.2 U . S -C, ( ) cooperative geements . States ; 7606) , Clean Water Act ( 33 U . S .C . 1368) (3) (2) The District of Columbia; and Executive Order 11738 ( 3 CFR, 1973 (4) Fellowships . Com 799} (5 ) Contracts of assistance . ( 3) The Commonwealth of Puerto p . , P (6) Loans , Rico ; § 180 ,940 Excluded or exclusion. (7) Loan guarantees , (4) Any territory or possession of the Excluded or exclusion means-- An(8 ) Subsidies , United States ; or (9) Insurances . agency or instrumentality of prohibited from being a participant in ( a) That a person or commodity is (10) Payments for specified uses . ( - ) Y g v (11 ) Donation agreements . a state . covered transactions , whether the (b) A nonprocurement transaction at (b) For purposes of this part , State person has been suspended ; debarred; any tier does not require the transfer of does not include institutions of higher proposed for debarment under 48 CFR Federal funds . education, hospitals , or units of local part 9 , subpart 9 .4 ; voluntarily governments excluded ; or § 180 .975 Notice. (b) The act of excluding a person . Notice means a written § 180.1010 Suspending official. communication served in person, sent (a) Suspending official means an § 180,945 Excluded Parties list System by certified mail or its equivalent , or agency official who is authorized to ( EPLS) • sent electronically by e-mail or impose suspension. The suspending Excluded Parties List System (EPLS) facsimile . ( See § 180 , 615 .) official is either: means the list maintained and (1) The agency head ; or disseminated by the General Services § 180.980 Participant. Administration (GSA) containing the Participant means any person who (2 ) An official designated by the names and other in about submits a proposal for or who enters agency head . persons who are ineligibles into a covered transaction , including an § 1801015 suspension . § 180.950 Federal agency4 agent or representative of a participant. Suspension is an action taken by a Federal agencymeans any United § 1B0.985 Person. suspending official under subpart G of States executive department, military Person means any individual , this part that immediately prohibits a department, defense agency or any other Corporation, partnership , association , person from participating in covered agency of the executive branch . Other unit of government, or legal entity , transactions and transactions covered agencies of the Federal government are however organized, under the Federal Acquisition not considered " agencies " for the 180.990 Preponderance of the evidence. Regulation (48 CFR chapter 1 ) for a purposes of this part unless they issue § preponderance of the evidence means temporary period , pending completion regulations adopting the of an agency investigation and any governmentwide Debarment and proof by information that, compared judicial or administrative proceedings Suspension system. under Executive with information opposing it, leads to that may ensue , A person so excluded Orders 12549 and 12688 . the conclusion that the fact at issue is is suspended. more probably true than not, § 180.955 Indictment. § 180 ,1020 Votuntary exciusion or § 180 .995 Principal. voluntarily excluded. Indictment means indictment fora principal means^ . (a) Voluntary exclusion means a criminal offense . A presentment, sentment, (a) An officer , director , owner , information , or other filing by a partner , principal investigator, or other person' s agreement to be excluded competent authority charging a criminal person wzthin a participant with under the terms of e. settlement between offense shall be given the same effect as management or supervisory the person and one or more agencies . an indictment responsibilities related to a covered Voluntary exclusion must have governmentwide effect. § 18o,960 Ineligible or ineiigiblihy. transaction ; or b Voluntarily excluded means the Ineligible or ineligibility means that a (b) A consultant or other person, status of aers n who has agreed to a person or commodity is prohibited from `'"tic ar or ant or paid with Fedloyed by the e al funds , voluntary exclusion . covered transactions because of an p ho 1� BILLING COOF 3110-01-P exclusion or disqualification. Federal Register / Vol , 70 , No , 168 / Wednesday , August 31 , 2005 / Rules and Regulations 51879 APPendix to part 180 _ - Covered Transact :.,,, COV39AM TRANSACTIONS liiiiiiiiiiiiiiiiiiiil NEW iiiiiiiiiii MINIMUM 1111111111111 1111 Federal Agency, 111111 WIWI 1111 All Primary Tier Nonprocurement Transactions All Lower Tier Nonprocurement Transactions All First Tier All First Tier Procurement Procurement Contracts Contracts Subject to 2>:$25 ,000 Agency Consent All Lower Tier Subcontracts Subject to Agency Consent BILLING CODE 3710-0i -C § 215 .13 Debarment and suspension . a 5 . Paragraph 8 of Appendix A to part PART 215—[AMENDED] Federal awarding agencies and 215 is revised to read as follows : recipients shall comply with Federal Appendix A to Part 215—Contract ■ 3 , The authority citation for part 215 agency regulations implementing F. D.s Provisions continues to read as follows : 19. 549 and 12689 , "Debarment and Authority: 31 U. S .C . 503 ; 31 U .S . C. 1111 ; Suspension . " Under those regulations , 8 . Debarment and Suspension M 0,8 12549 41 U.S.C. 405 ; Reorganization Plan No . 2 of certain parties who are debarred , and 12689)—A contract award with an 1970 ; E . O . 11541 , 35 FR 10727 , 3 CFR , 1966— suspended or otherwise excluded may amount expected to equal or exceed S25 , 000 1970 , p . 939 . not be participants or principalsin and certain other contract awards (see 2 CFF Federal assistance awards and 180.220) shall not be made to parties Iisted a 4 . Section 215 . 13 is revised to read as subawards , and in certain contracts on the government-wide Excluded Parties follows : under those awards and subawards , List System , in accordance with the OMB guidelines at 2 CFR part 180 that implement 51880 Federal Register / Vol . 70 , No . 168 / Wednesday , August 31 , 2005 / Rules and Regulations E• O .s 12549 (3 CFR, 1986 Comp . , p . 189) and (direct ) or ( 202) 395-3993 (main office) § 215 . 72 provides correction for a long- 12689 ( 3 CFR, 1969 Comp . , p . 235 ), and e-mail Hai_M._ Tran@omb .eop .gov, standing typo . "Debarment and Suspension. " The Excluded SUPPLEMENTARY INFORMATION : On May Parties List System contains the names of Y List of Subjects parties debarred, suspended, or otherwise 10 , 2004 169 FR 259701 , we revised the excluded by agencies , as well as parties three OMB circulars containing Federal 2 CFR Part 225 declared ineligible under statutory or cost principles. The purpose of those Accounting , Colleges and universities , regulatory authority other than E.O . 12549 , revisions was to simplify the cost Cooperative agreements , Grant ( FR Doc. 05-16647 Filed 8-30-05 ; 8 :45 am) principles by making the descriptions of programs , Grants administration , BILLING CODE 3110-4M-a similar cost items consistent across the Piospitals , Nonprofit organizations , circulars where possible , thereby Reporting and recordkeeping reducing the possibility of requirements . OFFICE OF MANAGEMENT AND misinterpretation , Those revisions 2 CFR Part 220 BUDGET resulted from OMB and Federal agency efforts to implement Public Lav, 106- Accounting , Colleges and universities , 2 CFR Parts 215 and 220 107 , and were effective on June 9 , 2004 . Grant programs , Grant administrations , In this document and the two Reporting and recordkeeping Cost Principles for Educational documents immediately following this requirements . Institutions (OMB Circular A-21 ) one , we relocate those three OMB Dated: August 8 , 2005 , AGENCY : Office of Management and circulars to the CFR, in Title 2 which Joshuas .. $olten, Budget. was established on. May 11 , 2004 [69 FR Director. ACTION: Relocation of policy guidance to 26276] as a central. location for OMB 2 CFR chapter II. and Federal agency policies on grants Authority and Issuance and agreements , When we established 2 a For the reasons set forth above , the 5UMMARYt The Office of Management CFR and relocated OMB Circular A-1. 10 Office of Management and Budget and Budget (OMB ) is relocating OMB in that new title , we stated that. we amends CFR, subtitle A, chapter 1I, as Circular A- 21 , " Cost Principles for would relocate in the near future the follows : Educational Institutions , " to Title 2 in other OMB circulars related to grants the Code of Federal Regulations ( 2 CFR) , and agreements . Today ' s documents are PART 215-[AMENDED] subtitle A, chapter Il , part 220 . This a significant step toward that end . a 1 . The authority citation for part 225 relocation is part of our broader Our relocation of OMB Circular A-21 continues to read as follows : initiative to create 2 CFR as a single does not change the substance of the location where the public can find both circular. Other than adjustments needed Authority: 31 U. S . C. 503 ; 31 U . S.C. 1111 ; OMB guidance for grants and to conform to the formatting 41 U.S.C . 4115 Reorganization Plan R, z of agreements and the associated Federal requirements of the CFR, this notice 1970 E40 . 11541 , 35 FR 10737 , 3 CFR, 1966- agency implementing regulations , The relocates in 2 CFF the version of OMB 1970 , p . 939 . broader initiative provides a good Circular A-21 as revised by the May 10 , § 216,6 [Amended) foundation for streamlining and 2004 notice . .w 2 , Section 215 . 5 is amended by adding simplifying the policy framework for Conforming changes to 2 CFR part " 20 CFR part 437 , " following " 15 CFR grants and agreementst one objective of 225 . There is a need for conforming p 24 OMB and Federal agency efforts to changes to 2 CFR part 215 , which S . Section 215 , 25 is amendedby implement the Federal Financial contains administrative requirements revising paragraphs (c) (6) and (e) to read Assistance Management Improvement for grants and other financial assistance as follows : Act of 1999 (Pub . L. 106-107 ) • agreements with educational Furthermore , this document makes institutions and other nonprofit § 215 .25 Revision of budget and program changes to 2 CFR part 215 , uniform organizations . The amendments to plans. Administrative Requirements for Grants § 215 . 25 (c) (6) and (e) , § 215 . 279 and and Agreements With Institutions of § 215 . 29 (b) add the new references to 2 (c) Higher Education. Hospitals , and Other CFR parts 220 , 225 , and 230 for the cast ( 6) The inclusion , unless waived by Non-Profit Organizations (OMB Circular principles in OMB Circulars A-21 , A- the Federal awarding agency , of costs A-210) . The changes will add to part 87 , and A-122 , respectively , that require prior approval in 215 new references to 2 CFR parts 220 , Update and corrections to 2 CFR. part accordance with any of the following , as 225 , and 230 for the cost principles in 215 . Additional changes to 2 CFR part ap licable : OMB Circulars A-21 , A-871 and A--122 , 215 are needed to update § 215 . 5 and to 2 CFR part 220 , " Cost Principles respectively ; will update part 215 tocorrect § 215 . 36 and § 215 . 72 . The for Educational Institutions ( OMB include a citation for the Social Security update to § 215 . 5 adds the CFR citation Circular A-21 ) ; " Administration' s grant regulation ; and for the Social Security Administration ' s (fi) 2 CFR part 230 , "Cost Principles will correct part 215 to add the (SSA) implementation of the grants for Non-Profit Organizations (OMB amendatory language of A-110 management common rule , " Uniform Circular A- 122 ) ; " published on October 8 , 1999 , and to Administrative Requirements for Grants (iii) 45 GFR part . 74 , Appendix E , correct a typographic error. . and Cooperative Agreements to State "Principles for Determining Costs DATES: This document is effective and Local Governments . " The changes Applicable to Research and August 31 , 2005 . This document to § 215 . 36 provide the corrections Development under Grants and republishes the existing OMB Circular needed to include the amendments to Contracts with Hospitals ; " and A-21 , which already is in effect, OMB Circular A-110 that were (iv) 48 CFR part 31 , "Contract Cost . FOR FURTHER INFORMATION CONTACT : Gil published as final on October 8 , 1999 Principles and Procedures . " Tran , Office of Federal Financial [ 64 FR 549261 and were inadvertently Management, Office of Management and omitted from our publication of part 215 (e) Except for requirements listed in Budget, telephone (202) 395-3052 last year [ 69 FR 262811 . The change to paragraphs (c) (1 ) and (c) (4) of this 15904 Federal Register / Vol , 73 , No . 59 / Wednesday , March 26 , 2008 / Rules and Regulations which guides the Coast Guard in person or vessel is prohibited unless Enterprise program in 7 years through complying with the National authorized by the Captain of the Port subsequent rulemaking. This rule also Environmental Policy Act of 1969 (COTP) , Boston or the COTP's revises EPA 's Minority Business (NEPA ) ( 42 U . S . C . 4321 -4370f) , and desinated representative , Enterprise (MBE) and Women ' s have concluded that there are no factors ( 2 The safety zone is closed to all Business Enterprise (WBE ) program and in this case that would limit the use of vessel traffic , except as may be renames it EPA 's Disadvantaged a categorical exclusion under section permitted by the COTP or the COTP 's Business Enterprise (DBE) Program , EPA 2 .13 . 2 of the Instruction , Therefore , this designated representative , is removing existing MBE/WBE specific rule is categorically excluded , under (3 ) Vessel operators desiring to enter provisions in regulations for grants and figure 2- 1 , paragraph ( 34 ) (g) , of the or operate within the safety zone must agreements with institutions of higher Instruction , from further environmental contact the COTP or the COTP 's education , hospitals , and other non. documentation . Under figure 2.1 , designated representative to obtain profit organizations ; and uniform paragraph ( 34 ) (g) , of the Instruction , an permission by calling the Sector Boston administrative requirements for grants "Environmental Analvsis Check List" Command Center at 617-223-5761 , and cooperative agreements to state and and a " Categorical Exclusion Vessel operators given permission to local governments , state and local Determination " are not required for this enter or operate in the safety zone must assistance , and research and rule because it concerns an emergency comply with all directions given to demonstration grants , and is situation of less than 1 week in them by the COTP or the COTP ' s consolidating and adding to these duration , designated representative . provisions in this new regulation . This List of Subjects in 33 CFR Part 165 Dated: March 12 , 2008 * rule affects only procurements under Gail P . Kulisch, EPA financial assistance agreements . Harbors , Marine safety , Navigation This rule does notapply to direct (water) , Reporting and recordkee in Captain . U.S. Coast Guard, Captain of the P g Port. Sector Boston Federal procurement actions . If you are requirements , Security measures , and a recipient of an EPA financial Waterways , 1FR Doc , E8-6149 Filed 3-25-08 ; 8 ;45 ami BILLING cone seta +s P assistance agreement or an entity Is For the reasons discussed in the receiving an identified loan under a preamble , the Coast Guard amends 33 financial assistance agreement CFR part 165 as follows : ENVIRONMENTAL PROTECTION capitalizing a revolving loan fund , this PART 165—REGULATED NAVIGATION AGENCY rule may affect you . AREAS AND LIMITED ACCESS AREAS DATES : This final rule is effective May 40 CFR Parts 30, 31 , 33 , 35 , and 40 27o2008 , ■ 1 . The authority citation for part 165 (pocket ID NO. EPA-FIQ-OA-2002-0001 ; ADDRESSES: EPA has established a continues to read as follows : F Docket I5-9] docket for this action under Docket ID Authority: 33 U. S.C. 1226 , 1231 ; 46 L'. S .C. No. EPA-HQ—OA-2002-0001 , All Chapter 701 ; 50 U. S .C. 1914 195 ; 33 CFR RIN 2090-AA38 documents in the docket are listed on 1 .05-1 , 6 . 04-1 , 6. 04-6 , and 160. 5 ; Pub . L , the www.regulations .gov Web site , 107-295 , 116 Stat . 2064 ; Department of Participation by Disadvantaged Although listed in the index, some Homeland Security Delegation No , 0170 . 1 . Business Enterprises in Procurementinformation is not publicly available , Under Environmental Protection e.g „ CBI or other information whose ■ 2. Add temporary § 165 . T01--0173 to Agency (EPA) Financial Assistance disclosure is restricted by statute , read as follows : Agreements Certain other material , such as § 165.T01 -.0173 Safety Zone : Longwood AGENCY : Environmental Protection copyrighted material , is not placed on Events Wedding Fireworks Display, Boston Agency . the Internet and will be publicly Harbor, Boston, MA. ACTION : Final rule , available only in hard copy form. (a ) Location . The following area is a Publicly available docket materials are safety zone ; SUMMARY : This action will harmonize available either electronically through All waters of Boston Harbor , from EPA ' s statutory Disadvantaged Business wwtv.regulatians.gov or in hard copy at surface to bottom , within a four Enterprise procurement objectives with the HQ EPA Docket Center , EPA/DC , hundred (400) yard radius of the the United States Supreme Court' s EPA West, Room 3334 , 1301 fireworks launch site located in Boston decision in Adarand Constructors, Inc. Constitution Ave . , NW . , Washington, Harbor at approximate position v . Pena , 515 U.S . 200 ( 1995 ) . In that DC 20004 , The Public Reading Room is 42021 '4201N , 071 °2 '36" W , case , the Supreme Court extended strict open from 8 : 30 a.m . to 4 : 30 p . m, , (b) Effective Date. This rule isjudicial scrutiny to federal programs Monday through Friday , excluding legal effective from 8 :45 p . m , through 9 :45 that use racial or ethnic criteria as a holidays . The telephone number for the p .m . on March 29 , 2008 . basis for decision making . Remedying Public Reading Room is ( 202) 566-1744 , (c ) Definitions . ( 1 ) Designated discrimination is recognized as a and the telephone number for the Office representative means a Coast Guard compelling government interest , and of Environmental Information is ( 202 ) Patrol Commander , including e Coast this rule is promulgated on the 566-1752 . Guard coxswain , petty officer , or other understanding that the statutory FOR FURTHER INFORMA71ON CONTACT: officer operating a Coast Guard vessel or provisions authorizing its adoption were Kimberly Patrick, Attorney Advisor , a Federal , State , or local officer enacted for that remedial purpose . This Office of the Administrator, Office of designated by or assisting the Captain of rule sets forth a narrowly tailored EPA Small and Disadvantaged Business the Port (COTP) . program to serve the compelling Utilization (OSDBU) by phone at ( 202) ( 2) [Reserved] government interest of remedying past 566-2605 , by e-mail at ( d) Regulations. ( 1 ) In accordance and current racial discrimination patrick.kimberly&epa .gov, or by fax at with the general regulations in section through agency-wide DBE procurement ( 202 ) 566-0548 ; or Cassandra Freeman , 165 . 23 of this part, entry into or objectives , EPA intends to evaluate the Deputy Director , Office of the movement within this zone by any propriety of the Disadvantaged Business Administrator , OSDBU by phone at Federal Register. / Vol . 73 , No . 059 / Wednesday , March 26 , 2008 / Rules and Regulations 15905 (202 ) 566-1968 , by e-mail at authorized programs , including grants , loans availability analyses showing the freeman . cassandroQepa.gov, or by fax at and. contracts for wastewater treatment and availability of MBEs or WBEs in the ( 202 ) 566-0266 . Both can be reached by leaking underground storage tanks grants , be financial assistance recipient' s relevant mail to OSDBU, U . S . Environmental made available to business concerns or other Protection Agency , 1200 Pennsylvania and economicaanizations lly disadvantaged ined or controlled dividuals do not opera buyinghic aagse #. These goals Avenue , NW. , mail code 1230T, 2 . Using the "Six Positive E orfs " or Washington , DC 20460 . (within. the meaning of section 8 (a) (5) and (6) g ff of the Small Business Act (15 U. S .C. 637(a) (5) "Six Affirmative Steps ": The "Six SUPPLEMENTARY INFORMATION: The and (6)) , including historically black colleges Positive Efforts " or " Six Affirmative contents of this final rule are listed in and universities . For purposes of this section , Steps " are measures designed to ensure the following outline : economically and socially disadvantaged MBEs and WBEs are considered in a Contents of the Final Rule individuals shall be deemed to include financial assistance recipient' s women* * ; and procurement practices , and they contain 1. General information 2 . Public Law 101-549 , Title X of the treasures a recipient may undertake to A. Does This Rule Apply to Mel Clean Air Act Amendments of 1990 (42 make procurements more open to MBEs B , What are the Statutory Authorities for U , S .C, 7601 note) ("EPA's 10 % and WBEs . this Final Rule ? statute ") which states : 3 . Re orcin Accom lishments: Under Il. Background � P g p Ill. Overview of Final Rule In providing for anv research relating to the the current MBE/WBE program, W. Summary of Response to Public requirements of the amendments made by the recipients of EPA financial assistance Comments Clean Air Act Amendments which use funds agreements are required to report on V. Statutory and Executive Order Reviews of the Environmental Protection Agency, the their accomplishments with the A. Executive Order 12866 : Regulatory Administrator of the Environmental program using EPA Form 5700-52A. Planning and Review Protection Agency shall, to the extent Reporting is the tool we use to assess B . Paperwork Reduction Act practicable , require that not less than 1 D whether or not the program is effective C. Regulatory Flexibility Act percent of the total Federal funding for such and actually translating into increased D. Unfunded Mandates Reform Act research will be made available to opportunities for MBEs and WBEs . E. Executive Order 13132: Federalism disadvantaged business concerns . Nothing in EPA' s MBE/WBE Program is currentl F . Executive Order 13175 : Consultation this title shall permit or require the use of g Y and Coordination With Indian Tribal quotas or a requirement that has the effect o£ implemented through : Governments a quota in determining eligibility ( 1 ) Existing MBE and WBE provisions G. Executive Order 13045 : Protection of Other legal authorities and Executive scattered throughout 40 CFR parts 30 , Children From Environmental Health Or31 , 35 and 40 ; and Safety Risks Orders regarding this final rule include (2 ) Grant conditions ; and H. Executive Order 13211 : Actions That Public Law 99--499 , the Superfund ( 3 ) The Agency ' s "Guidance for the Significantly Affect Energy Supply , Amendments and Reauthorization Act Utilization of Small , Minority , and Distribution, or Use of 1986 ; Public Law 100-590 , the Small Women's Business Enterprises in 1. National Technology Transfer and Business Administration Assistance Agreements . " Advancement Act of 1995 Reauthorization and Amendment Act of In 1995 , the Supreme Court' s decision J. Executive Order 12898 : Federal Actions 1988 ; Executive Order 12138 , " Creating in Adarand Constructors, Inc. v . To Address Environmental Justice in a National Women ' s Business Enterprise Federico Pena , Secretary of Minority Populations and Low -income Policy and Prescribing Arrangements for Transportation , 515 U . S , 200 Populations Developing, Coordinating and ( " Adarand ") , extended strict judicial K. Congressional Review Act Implementing a National Program for scrutiny to federal affirmative action 1. General Information Women' s Business Enterprise , " issued programs that use racial or ethnic A . Does This Rule Apply to Me ? May 18 , 1979 ; Executive Order 11625 , criteria as a basis for decisionmaking . In "Prescribing Additional Arrangements other words , such programs must be If you are a recipient of an EPA for Developing and Coordinating a based on a compelling governmental financial assistance agreement , or an National Program for Minority Business interest , for example , remedying the entity receiving an identified loan under Enterprise , " issued October 13 , 1971 ; effects of discrimination , and must be a financial assistance agreement and Executive Order 12432 , " Minority narrowly tailored to accomplish that capitalizing a revolving loan fund, or a Business Enterprise Development, " interest. minority -owned , woman-ovrred , or issued July 14 , 1983 . Following the Adarand decision , in small business , this rule may affect you . Ba1996 , the Department of Justice (DOJ) If you have any questions regarding the Background began a review of affirmative action applicability .of this action to a EPA 's current Minority Business programs in the Federal Government. In particular entity , consult the person Enterprise/Woman-owned Business response to this review, the Department listed in the preceding FOR FURTHER Enterprise ( " MBE/VIBE " ) program has of Transportation (DOT) , whose DBE INFORMATION CONTACT section , three major components designed to program mirrored EPA' s MBE/WBE ensure that minority and women- owned program , revised its program for B. What Are the Statutory Authorities for This Final Rule? businesses have the opportunity to participation of DBEs in procurements participate in procurements funded by under DOT's financial assistance EPA 's primary statutory authorities EPA financial assistance agreements , agreements to comply with the Adarand for this final rule are : Those components are as follows : decision (See 64 FR 5096 ) . This final 1 . Public Law 102-389 (42 U. S. C . 1 . Negotiating Fair Share Goals : The rule reflects EPA 's efforts to similarly 4370d) , a 1993 appropriations act current MBE/WBE program requires all comply . ("EPA 's 8 % statute ") , which provides : recipients of EPA financial assistance Remedying discrimination is The Administrator of the Environmental agreements to negotiate goals with the recognized as a compelling government Protection Agency shall , hereafter , to the Agency for the utilization of MBEs / interest, and. this rule is promulgated on fullest extent possible, ensure that at least 8 WBEs for procurements funded by EPA the understanding that the statutory per centum of Federal funding for prime and financial assistance agreements . The provisions authorizing its adoption were subcontracts awarded in support of goals are based on disparity studies or enacted for that remedial purpose . This 15906 Federal Register / Vol . 73 , No . 59 / Wednesday , March 26 , 2008 / Rules and Regulations rule sets forth a narrowly tailored EPA negotiations . The specific changes are and controlled by socially and program to serve the compelling summarized as follows ; government interest of remedying past economically disadvantaged and current racial discrimination P 1 . Certification individuals . However , the statutory through agency-wide DBE procurement Under the current MBE/WBE ro am authority for EPA ' s DBE program objectives . EPA intends to evaluate the EPA recognizes Small Business p requires ownership or control , Public Law 102-389) ; and propriety of the Disadvantaged Business Administration (SBA ) certifications or Enterprise program in 7 years through certifications by a State or other Federal S . Women owned business subsequent rulemaking Agency , or self-certifications. EPA enterprises . for three This final rule requires recipients to currently does not require WBEs to be yearPs as I nlg as the certifiedfications will ltentity files use race/gender-neutral measures to certified , an annual affidavit affirming that no ensure DBEs have meaningful Under the new DBE program changes in circumstances have occurred opportunities to bid on recipient- promulgated today , in order to be which affected the entity ' s status as an sponsored procurements . It does not counted as an MBE or WBE under an MBE or WBE . Appeal procedures are require recipients to use race/gender- EPA financial, assistance agreement , an provided for entities denied MBE or conscious measures . However , if a entity will have to be certified as such . WBE certification , or anyone who recipient elects to use such measures , EPA will require an MBE/WBE to first disagrees with EPA 's decision to certify the recipient should satisfv itself that seek certification by a federal agency an entity as an MBE or WBE . the measure meets all applicable legal ( e t; the Small Business Administration requirements , including those (SBA ) , the Department of Transportation. 2 , Six Good Faith Efforts established in Adarand, Because this (DOT)) , or by a State , locality , Indian The good faith efforts are activities by rule only requires race/gender -neutral Tribe , or independent private a recipient and its prime contractor to measures , it should not be subject to organization provided their applicable increase DBE awareness of procurement strict judicial scrutiny . Even so , we criteria match those under section 8 (a ) opportunities through race/gender believe this rule is narrowly tailored to (5 ) and ( 6 ) of the Small Business Act neutral efforts . Race/gender neutral achieve a compelling governmental and SBA' s applicable 8 ( a ) Business efforts are ones which increase interest consistent with Adarand . Development Program regulations . EPA awareness of contracting opportunities EPA worked collaboratively on this will only consider certifying firms that in general , including outreach , rulemaking with various program offices cannot get certified by one of these recruitment and technical assistance . within the Agency , the EPA Office of entities . Requiring firms to first seek For purposes of simplification , EPA has General Counsel , and the EPA Regions , certification from other sources is combined the " Six Positive Efforts " of We also held discussions with other beneficial for the business entity 40 CFR 30 .44 (b) applicable to Federal agencies , including SBA and because an EPA certification is limited institutions of higher education , DOT whose DBE programs are in some in that it would only be accepted by hospitals and other non-profit ways similar to ours , or have undergone EPA . Certifications from other sources organizations with the " Six Affirmative changes similar to the ones we are have broader applications . Also , Steps " of 40 CFR 31. 36 (e) applicable to implementing. EPA has also requiring firms to first seek certification State , Local and Indian Tribal collaborated with the Civil Rights from other sources reduces the burden Government recipients and renamed Division of DO) throughout the on the Agency associated with them the six " good faith efforts . " , rulemaking process . processing certifications . 3. Contract Administration The creation and implementation of Requirements M. Overview of Final Rule an EPA certification program is This rulemaking removes all of EPA' s necessary because the statutory The rule adds additional contract current MBE/WBE fair share objectives authority for EPA 's program includes administration requirements which are and good faith efforts regulatory classifications of businesses that are not intended to prevent any " bait and provisions and replaces them with DBE currently certified by other sources , switch " tactics at the subcontract level provisions to be codified in the new 40 Businesses that fall within these by prime contractors which mac CFR part 33 . In addition , this rule classifications would potentially have circumvent the spirit of the DBE supersedes inconsistent provisions of no other option for certification to Program as well as other related previous guidance documents for EPA ' s participate in EPA ' s DBE program , EPA requirements , Some of these former MBE and WBE Program , anticipates that the following types of requirements include provisions entities will have to be considered for intended to ensure that subcontractors including , but not limited to , EPA 's certification by EPA : receive prompt payment from prime " Guidance for Utilization s Small , 1 . Disabled American -owned firms ; contractors . In addition, this proposal Minority , and VVamen ' s Business 2 . Private and voluntary organizations would require a recipient to be notified Enterprises in Procurement Under controlled by individuals who are in writing before its prime contractor Assistance Agreements " (the 1497 socially and✓economically could terminate a DBE subcontractor for Guidance) , 62 FR 45645 , disadvantaged; convenience and then perform the work There are six substantive changes this 3 . Women-owned and minority itself, Furthermore , when a DBE rule will make to the way the program owned -businesses who cannot get subcontractor is terminated or fails tD currently operates . Those changes certified under. DOT or SBA size criteria complete its work under the subcontract involve : ( 1 ) Certification of minority and (EPA does not have size criteria) or by for any reason , the recipient must women -owned businesses ; (2) the six a State Government, local Government, require the prime contractor to make good faith efforts ; ( 3 ) contract Indian Tribal Government or good faith efforts if the prime contractor administration requirements ; (4 ) independent private organization ; chooses to hire another subcontractor . A negotiation of fair share goals ; ( 5 ) 4 , Businesses owned or controlled by recipient must also require its prime recordkeeping and reporting socially and economically contractor to continue to make the good requirements ; and (6 ) new requirements disadvantaged individuals (nate—SBA faith efforts even if the fair share for Tribal and insular area fair share and DOT require an entity to be owned objectives in subpart D of the rule have Federal Register / Vol , 73 , No . 59 / Wednesday , March 26 , 2008 / Rules and Regulations 15907 been met. Finally , this rule provides for unique nature of eligible recipients . this requirement for recipients receiving three new forms which are required if Superfund. Technical Assistance Grants grants or loans of $ 250 ,000 or less for there are DBE subcontractors involved (TAG' s ) would be exempt due to the any single assistance agreement or loan, in a procurement. nature of their funding cycles . A or of more than one financial assistance 4 . Negotiation of Fair Share Coals (and recipient under the Clean Water State agreement or loan with a combined total $250, 000 Exemptions) Revolving Fund , the Drinking Water of $ 250 , 000 or less in EPA funds in any State Revolving Fund , and the one year. This rule codifies EPA 's procedures Brown£ields Clean-Up Revolving Loan for negotiating fair share goals with Fundis not required to apply the fair 6. New Requirement for Tribal and financial assistance recipients . The share objective requirements to an entity Trust Territory Fair Share Negotiations process for such negotiations is receiving an identified loan in an EPA does not current) negotiate fair currently implemented through amount of $250 , 000 or less . y g guidance , as well as through terms and share goals with Indian Tribal conditions incorporated into EPA 5 . Recordkeeping and Reporting Government and Trust Territory financial assistance agreements . This Requirements recipients , This rule will require such rulemaking keeps the current basic Currently , all financial assistance recipients to negotiate fair share goals . approach , with some fine tuning , agreement recipients must report on a Therefore , under the rule such including a provision which would quarterly basis , except for recipients of recipients will. have a three year phase- exempt a recipient of a financial continuing environmental program in period to adjust to the regulatory assistance agreement of $ 250 , 000 or less grants , and institutions of higher change . In the interim , they will still for any assistance agreement , or of more education , hospitals and other non have to comply with the other than one financial assistance agreement profit organizations receiving financial requirements of this rule , with a combined total of $ 250 ,000 or assistance awards under 40 CFR part 30 , A . Summary of Response to Public less in EPA funds in any one year , from who report on an annual basis . This rule Comments the fair share objective negotiation will reduce the reporting frequency to requirement. In addition , eligible semi-annually for all recipients who Excluding changes in wording to program grants which can be included currently report on a quarterly basis , increase clarity , there are only four in Performance Partnership Grants to This rule also requires all financial substantive changes reflected in this Tribal and Tribal consortia recipients assistance recipients , and recipients of final rule , Those changes , along with a will be exempt from the fair share loans under CWSRF , DWSRF , or BCRLF breakdown of the number and type of negotiation requirement due to the Programs to create and maintain a comments received, are below: nature of these program grants and the bidders list. There is an exemption from Number of Comments Received : 126 Primary areas of public concern Number of Percent of comments all comments Certification . . . .. . . . .. . . . .. . ... . ... . . . . . . . . . . . . . .. . . . . . . . .. . .. . . . . .. . . . . . .. . . . . . . . .. . . . . . . . . . . . . . . .. . . . . .. .. . . . . . . . . .. . . . . . . .. . .. . . . . . . .. . . . . .. . .. . .. . . . . . . . .. . . . . . . .... . . 23 18 General (wording and clarification) . . . . . .. . . . . . .. . . . . . . . . . . . . . . . . . . .. . . . . .. . . .. . . . . . . . .. . .. . . . . . . . . . . . . . . . . . .. . . . . . . . . . ... . .. . . . . . . . .. .... ... .. . .. . .. . . .. .. : 16 i 13 GoodFaith Efforts . .. . . . .. . .. . . . . .. . . . . . . . . .. . . . . . . . . ... . .. . .. . . . . . . . . . . . . . . . .. . . .. . . . . . . . . . . . . . . . . . .. . . . . . . . .. . . .. . .. . ... . . . . .. . .. . . . .. . .. . . . . . . . . . .. . . . . . . . . . . . . . . . 14 11 SubcontractingProvisions . . . . . . . . . .. . . .. . . . . . . . . . .. .. . . . . . . . . . . . . . . .. . . . .. . . . . . . . . .. .. . . . . . .. . .. ... . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . .. . . . . .. . .. .. . . . 12 9 BiddersList . . . .. . . . .. .. .. . . ... . . . .. . . . .. . . . .. . .. . . . . . . ... .. . . . . . . . . . . . . . . . . . . . . . ... . . . . .. . . . . . . . . . . . .. . . . . . . . . . . . . . .. .. . 11 9 Major Revisions Based on Public recipient . In an effort to curtail the non-MBE/WBEs . The bidders list is Comment (not including wording or practice of excessively late designed to also aid recipients in their clarification ): subcontractor payments , the rule efforts to comply with the "six good 1 , § 33 . 105—Enforcement Provisions establishes maximum of 30 days by faith efforts , " by creating a source of which a prime contractor must pay its MBEs and WBEs that can be relied upon There were several comments subcontractor , after payment by the to increase the inclusion of MBEs and concerning enforcement of the rule . A grant recipient . WBEs in the recipient 's procurement number of comments stated that there 3 : § 33 . 501—Bidders List practices . Section 33 . 501 (b) of the rule are no " teeth " in the program and that has been revised. to read as follows : more policing of the program will be Many comments were received A recipient of a Continuing Environmental needed to insure compliance with the requesting clarification about the Program Grant or other annual grant must requirements of the rule . While the text contents , purpose and duration of the create and maintain a bidders list. In of the rule mentions that EPA can take bidders list, The purpose of the Bidders addition , a recipient of an EPA financial remedial action for non-compliance , it List is to provide the recipient and assistance agreement to capitalize a revolving does not clear) state what those actions loan fund also must require entities receiving Y entities receiving identified loans who identified loans to create and maintain a are . In an effort to show more "teeth , " conduct competitive bidding with a bidders list if the recipient of the loan is this section has been revised to include more accurate database of the universe subject to , or chooses to follow , competitive some of the remedial measures EPA can of MBE/WBE and non-MBE/WBE prime bidding requirements . The purpose of a take if a recipient fails to comply with and subcontractors . The bidders list is bidders list is to provide the recipient and the requirements of the rule , intended to be a list of all firms that are entities receiving identified loans who 2 . § 33 . 302—Subcontractor Provisions participating , or attempting to conduct competitive bidding with as accurate participate , on EPA assisted contracts , a database as possible about the universe of MBEIPublic comment requested that EPA The list must include all firms that bid subroWBE and nhe list )WBE prime and q subcontractors . The list must include all specify the number of days within on prime contracts , or bid or quote on firms that bid or quote on primo contracts or which a prime must pay its subcontracts under EPA assisted bid or quote on subcontracts under EPA subcontractor after payment by the projects , including both MBE/WBEs and assisted projects , including both. MBE/WBEs 15908 Federal Register / Val . 73 , No . 59 / Wednesda-v , March 261 2008 / Rules and Regulations and non-MBE/WBEs . The bidders list must in federally assisted contractin as well be kept until the grant project period has g � (EPA Farm 6100— ih) (Concerns owned as policy concerns , This rule also affects by Native Hawaiian Organizations } , and expired and the recipient is no longer receiving EPA funding under the grant. For a wide variety of parties , including all the EPA DBE Certification Application entities receiving identified loans , the EPA financial assistance programs , and (EPA Form 6100- 1i ) (Concerns Owned bidders list must be kept until the project the DBE and non-DBE contractors that by Community Development period for the identified loan has ended. The perform work under them. As a Corporations ) , as applicable , would be following information must be obtained from "significant regulatory action , " EPA required to be completed by an entity all prime and subcontractors : submitted this action to the Office of seeking to be counted as a minority ( 1 ) Entity 's name with point of contact.; Management and Budget ( OMB ) for business enterprise (MBE) or women' s ( 2 ) Entity ' s mailing address , telephone review under EO 12866 and any business enterprise (WBE) under EPA 's number , and e-mail address ; changes made in response to OMB DBE Program , which cannot get certified ( 3 ) The procurement on which the entity recommendations have been g bid or quoted , and when ; and as an MBE or WBE by the SBA or DOT (4) Entity 's status as an MBE/WBE or non- documented in the docket for this under their respective programs or by an MBE/WBE, action , Indian. Tribal Government or In response to internal concerns Based on currently available independent private organization information about costs that may be consistent with EPA's 8 % or 10 % regarding the application of the bidders associated with complying withthisstatute as applicable, list requirement , we have created an rule (e.g. , costs to obtain MBE or WBE Responses to the collection of exemption to this provision. The certification ) , EPA believes that this rule information will be mandatory . EPA 's exemption found at § 33 , 501 ( c ) is as will not have an annual effect on the legal authorities for the DBE Program follows : economy of $ 100 million or more . are Public Law 102-389 , a 1993 A recipient of an EPA financial assistance Therefore , EPA did not prepare a appropriations act (42 U , S , C . 4370d) agreement in the amount of 5250,000 or less regulatory impact statement for this (EPA ' s 8 % statute ) , and Public Law for any single assistance agreement , or of rule . 101 -549 , Title X of the Clean Air Act more than one financial assistance agreement with a combined total of 5250 .000 or less in B. Paperwork Reduction Act Amendments of 1990 (42 U . S .C. 7601 any one fiscal year , is exempt from the The Office of Management and Budget note ) (EPA ' s 10 % statute) . paragraph (b) of this section requirement to g g Other legal authorities and Executive create and maintain a bidders list. Also , a (OMB ) has approved the information Orders include Public Law 99-499 , the recipient under the C bidders 1lWt. Al or collection requirements contained in Superfund Amendments and this rule under the provisions of the Reauthorization Act of 1986 ; Public Law BCRLF Program is not required to apply the paragraph (b) of this section bidders list Paperwork Reduction Act, 44 U ,S , C 100-590 , the Small Business requirement of this subpart to an entity 3501 et seq . and has assigned OMB 7 Administration. Reauthorization and receiving an identified loan in an amount of control number 2090-0030 . Amendment Act of 1988 ; Executive $250 , 000 or less . or to an entity receiving This ICR is for the purpose of Order 12138 , " Creating a National more than one identified loan with a ensuring that EPA 's statutory DBE Women 's Business Enterprise Policy combined total of 5250 ,000 or less in any one procurement goal requirements are and Prescribing Arrangements for fiscal year. This exemption is limited to the implemented in harmony with the Developing , Coordinating and paragraph (b) of this section bidders list United States Supreme Court's decision Implementing a National Proram for W requirements of this subpart. in Adarand Constructors, Inc, v . Pena , p ° g Women 's Business Enterprise , " issued 4 . § 33 . 502—Reporting 115 S . Ct. 2097 ( 1995 ) . May 18 , 1979 ; Executive Order 11625 , In res onse to internal and external The requirements to complete EPA "Prescribing Additional Arrangements comments , this section of the rule has Forms 6100-2–DBE Program for Developing and Coordinating a Subcontractor Participation Form , National Program been revised to require semiannual 6100_3 –DBE Program Subcontractor for Minority Business reporting for all recipients who g Enterprise , " issued October 13 , 1971 ; currently report on a quarterly basis . All Performance Form , and 6100-4–DBE and Executive Order 12432 , "Minority Program Subcontractor Utilization Business Enter r recipients who report annually will p iso Development, " continue to do so. Form , are intended to prevent any "bait issued July 14 , 1983s A section-by-section analysis of the and switch " tactics at the subcontract EPA may make available to the public mile , addressing public comments in level by prime contractors which may any information concerning EPA 's DBE detail , can be found on the public circumvent the spirit of the DBE Program where the release of which is docket for this rule mal he under Program . not prohibited by Federal law or Docket ID No . EPA–H¢ng under The requirements to complete the regulation , including EPA ' s Confidential 0001 , at www.regulations .gov. EPA DBE Certification Application (EPA Business Information regulations at 40 Form 6100-1a ) ( Sole Proprietorship) , CFR part 2 , subpart B . V. Statutory and Executive Order the EPA DBE Certification Application The total labor burden and costs to Reviews (EPA Form 6100-1b) (Limited Liability MBEs and WBEs for certification under A . Executive Order 12866: Regulatory Company ) , the EPA DBE Certification State , Tribal and Insular Area funding p Planning and Review Application EPA 6100-1c) programs is estimated to total (Partnerships) , the EPA DBE $ 8 , 750 ,300 , with 168 ,275 burden hours Under Executive Order (EO) 12866 Certification Application (EPA Form and 6 , 731 MBE and WBE entities ( 58 FR 51735 , October 4 , 1993 ) 2 this 6100-1 d) ( Corporations) . the EPA DBE affected for the three-year period of the action is a " significant regulatory Certification Application (EPA Form ICR, The estimated annual burden per action, " This rule reflects and raises 6100—I6 (Alaska Native Corporations ) , response is 25 hours ; the number of legal or policy issues arising out of legal the EPA DBE Certification Application respondents is estimated at 2 , 244 at an mandates . This rule has a direct impact (EPA Form 6100-1f) (Tribally Owned average annual labor burden and cost. on contracting funded by EPA financial Businesses ) , the EPA DBE Certification per MBE and WBE of $ 1300 . The assistance agreements . There is Application (EPA Form 6100--18) average annual burden and costs are substantial public interest concerning (Private and Voluntary Organizations ) , estimated by spreading the first year programs to ensure nondiscrimination the EPA DBE Certification Application cost over the three-year period (>f the Federal Register / Vol. . 73 , No . 59 / Wednesday , March 26 , 2008 / Rules and Regulations 15909 TCR, yielding a total annual average under the Administrative Procedure Act This rule contains no Federal burden of 56 , 092 hours and $ 2 , 916 , 767 (APA) or any other statute. As a grants - Mandates (under the regulatory in costs , related rule , this rule is not subject to provisions of Title Il of the UMRA ) for The total labor burden and costs to all the notice and comment requirements of State , local , or tribal governments or the EPA grant and loan recipients that the APA , 5 U . S . C. 553 ( a)( 1 ) . Nor is there private sector , The UMRA excluded would have to perform an availability any other statute which requires EPA to from the definition of " Federal analysis to meet the requirements of the undergo notice and comment for this intergovernmental mandate " duties that proposed .rule and other paperwork rulemaking. arise from conditions of federal requirements are estimated to be It is important to note that EPA ' s DBE assistance . Thus , today 's rule is not $ 16 , 509 , 500 with 825 ,475 burden hours Program is aimed at improving subject to the requirements of section and 3 , 115 entities affected for the three- contracting opportunities for small 202 and 205 of the UMRA , year period of the ICR. The estimated businesses owned and controlled by Pursuant to section 203 of the UMRA , annual burden hours for all responses is socially and economically EPA has also determined that this rule 275 , 158 , and. the annual number of disadvantaged individuals , among contains no regulatory requirements that respondents is estimated at 1 ,038 , others (e . g. , Historically Black Colleges might significantly or uniquely affect The annual cost for all respondents and Universities , etc. ) . Accordingly, small governments . With the would be 55 ,503 , 167 . The cost per EPA believes that this rule will. impact exemptions at the 5250, 000 level or less respondent is estimated at $ 5 , 250 ( each a substantial number of small entities . from compliance with the fair share respondent is estimated to perform an objective requirements , EPA believes availability analysis once every three D . Unfunded Mandates Reform Act that there would be minimal impacts on years) and is estimated to take 265 hours Title II of the Unfunded Mandates small entities , including small at S20/hour , EPA assumed there were Reform Act of 1995 Unfunded , Public government jurisdictions , Additionally , no additional start-up costs or capital Law 204-4 , establishes requirements, Public for under this rule , small entity recipients expenditures. will be able to use appropriate State Burden means the total time , effort , or Federal agencies to assess the effects of Agency-negotiated MBE/WBE objectives financial resources expended b persons their regulatory actions on State , local, p y p and tribal governments and the private if such recipients solicit bids/ offers from to generate , maintain, retain , or disclose g p substantially the same relevant or provide information to or for sector. Under section 202 of the UMRA, geographic market as that State Agency . Federal agency. This includes the time EPA generally must prepare a written Therefore , this rule does not meet the needed to review instructions ; develop , statement, including a cost-benefit threshold test for application of section acquire , install , and utilize technology analysis , for proposed and final rules 203 of UMRA. and systems for the purposes of with "Federal mandates " that may collecting , validating, and verifying result in expenditures by State , local , E. Executive Order 13132: Federalism information , processing and and tribal governments , in the aggregate, Executive Order 13132 , entitled maintaining information , and disclosing or to the private sector of $ 100 million "Federalism " ( 64 FR 43255 , August 10 , and providing information; adjust the or more in any one year , Before 2999) , requires EPA to develop an existing ways to comply with any promulgating an EPA rule for which a accountable process to ensure previously applicable instructions and written statement is needed , section 205 " meaningful and timely input by State requirements ; train personnel to be able of the UMRA generally requires EPA to and local officials in the development of to respond to a collection of identity and consider a reasonable regulatory policies that have federalism information ; search data sources ; number of regulatory alternatives and implications . " " Policies that have complete and review the collection of adopts the least costly , most cost- federalism implications " is defined in information ; and transmit or otherwise effective or least burdensome alternative the Executive Order to include disclose the information, that achieves the objectives of the rule. regulations that have " substantial direct An agency may not conduct or The provisions of section 205 do not effects on the States , on the relationship sponsor , and a person. is not required to apply when they are inconsistent with between the national government and respond to a collection of information applicable law . Moreover , section 205 the States , or on the distribution of unless it displays a currently valid OMB allows EPA to adopt an alternative other power and responsibilities among the control number. The OMB control than the least costly , most cost- effective various levels of government . " numbers for EPA ' s regulations in 40 or least burdensome alternative if the This rule does not have "federalism CFR are listed in 40 CFR part 9 , In Administrator publishes with the final implications , " as defined in the addition , EPA is amending the table in rule an explanation why that alternative Executive Order . It will not have 40 CFR part 9 of currently approved was not adopted . Before EPA establishes substantial direct effects on the States , OMB control numbers for various any regulatory requirements that may on the relationship between the national regulations to list the regulatory significantly or uniquely affect small government and the States , or on the citations for the information governments , including tribal distribution of power and requirements contained in this final governments , it must have developed responsibilities among the various rule. under section 203 of the UMRA a small levels of government , as specified in C. Regulatory Flexibility Act government agency plan. The plan must: Executive Order 13132 . Because this g r S provide for notifying potentially rule conditions the use of federal This rule is not subject to the affected small governments , enabling assistance , it will not impose substantial Regulatory Flexibility Act (RFA) , which officials of affected small governments direct compliance costs on State and generally requires an agency to prepare to have meaningful and timely input in local governments . Thus, the a regulatory flexibility analysis for any the development of EPA regulatory requirements of section 6 of the rule that will have a significant proposals with significant Federal. Executive Order do not apply to this economic impact on a substantial intergovernmental mandates , and rule , number of small entities . The RFA informing , educating and advising small In the spirit of Executive Order 13132 applies only to rules subject to notice- governments on compliance with the and consistent with EPA policy to and-comment rulemaking requirements regulatory requirements , promote communications between EPA 15910 Federal Register / Vol . 73 , No . 59 / Wednesday , March 269 2008 / Rules and Regulations and State and local governments , EPA toward meeting MBE/WBE objectives . In with § 33 . 501 (b ) . The purpose of this list specifically solicited comment on the addition , the rule will have the is proposed rule from State and local following impacts on tribes /tribally database as possible about the universe officials . Stakeholders , including owned businesses : of MBEAl7BE and non-MBE/WBE prime representatives from State government First , a business owned by a federally and subcontractors who seek to work on agencies , State government recognized tribal government would procurements under EPA financial organizations and local governments , have to file an annual affidavit with assistance agreements . The following were given an opportunity to comment EPA certifying no change in its MBE information must be obtained from all on. the proposed rule which was status , pursuant to § 33 . 210 of this rule. such prime and subcontractors ( 1 ) published in the Federal Register on Second , a business owned by a July 24 , 2003 , during the 180-dav Federally rrecognized tribal overnment Entity ' s name with point of tel contact; { 2} comment period . Public hearings were will have to be recertified eve three entity ' s mailing address , telephone number, and e-mail address; ( also held in several states across the years as meetingSBA ' s applicable Procurement on which the entit8 a) t the country to discuss the proposed rule criteria to be eliible to bounted in y bid tor o and to encourage comment . the future towards meeting the MBE/ quoted , and when ; and (4) entity 's status g as an MBE/WBE or non-MBE/WBE . F. Executive Order 13175 Consultation WBE fair share objectives , pursuant to EPA consulted with tribal officials and Coordination With Indian Tribal § 33 b 208 * and /or representatives of tribal Governments Tird , a business owned by a governments early in the process of federally recognized tribal government, developing this regulation to permit Executive Order 13175 , entitled if it is not already certified in them to have meaningful and timely "Consultation and Coordination with accordance with SBA' s applicable 8 (a) input into its development. This rule Indian Tribal Governments " ( 65 FR criteria , may have to incur costs to be has been under development for the 67249 , November 9 , 2000) , requires EPA certified if there is no tribal certifier to develop an accountable process to available and the other certifyingentity Past several years . The meaningful and ensure "meanin meaningful and timely Y timely input of Tribal officials and/or g y input b3 charges for its services , representatives into the development of tribal officials in the development of Fourth , a tribe as a recipient of EPA this rule is as follows : regulatory policies that have tribal financial assistance will have to be On February 2--4 , 1999 , EPA invited implications . " EPA has concluded that notified in writing before any tribal recipients of EPA grants and this final rule will have tribal termination of a DBE subcontractor for cooperative agreements to an EPA/State/ implications . However , it will neither convenience is made by its prime Tribal Annual Conference in impose substantial direct compliance contractor, pursuant to § 33 . 303 ( a) . Albuquerque , New Mexico . During this costs nor preempt tribal law . Those Fifth , consistent with other Federal conference , EPA representatives impplications are as follows : and tribal laws , a tribe will have to discussed a number of issues relating to Trfbes receiving an EPA financial require its prime contractor , after the the rule under development with the assistance agreement of more than tribe has unsuccessfully sought to apply general audience . In addition . EPA 5250 , 000 for any single assistance Indian preference consistent with the representatives met separately with agreement, or of more than one financial Indian Self-Determination and tribal officials and/ or representatives to assistance agreement with a combined Education Assistance Act , to employ the discuss issues of concern to tribes . EPA total of more than $250 ,000 in anv one good faith efforts described in § 33 . 301 posted a staff draft of the proposed rule , fiscal vear (excluding Performance if a DBE subcontractor fails to complete dated June 19 , 2000 . on EPA 's Internet Partnership Grant eligible grants to work under a subcontract for any reason Web site to solicit public comment. On tribes and intertribal consortia under 40 and the prime contractor solicits a June 27-30 , 2000 , the Agency held its CFR part 35 , subpart B ) will have to replacement subcontractor , pursuant to EPA/State/Tribal Annual Conference in negotiate fair share objectives with EPA § 33 . 303 (b ) . Albuquerque , New Mexico , Again , EPA unless they choose to adopt MBE and Sixth , consistent with other Federal invited tribal recipients of EPA financial WBE objectives of another EPA and tribal Laws , a tribe will have to assistance agreements to attend . During recipient consistent with the final rule. require its prime contractor , after it has the June , 2000 conference , agency Those tribes required to negotiate fair unsuccessfully sought to apply Indian representatives discussed in detail the share objectives with EPA will have a preference consistent with the Indian June 19 , 2000 staff draft of the rule , phase-in period of up to three years in Self-Determination and Education which had been posted on EPA ' s Web which to do so ; their fair share Assistance Act, to employ the good faith site . EPA solicited comments on the objectives will remain in effect for three efforts described in § 33 . 301 even if it staff draft of the rule from conference fiscal years after they have been has achieved its fair share objectives participants . Tribal officials and/or approved by EPA, unless there are under subpart D of the rule , pursuant to representatives attended that conference significant changes to the data § 33 . 303 ( c ) . as well . As of June 30 . 2001 , EPA supporting the fair share objectives . Seventh , a tribe will have to require received a total of 17 written comments Some tribally owned businesses its prime contractors to provide EPA on the staff draft from Indian tribes . (businesses that a Federally recognized Form 6100--2—DBE Program During the development of this rule tribal government owns or in which it Subcontractor Participation Form, EPA EPA representatives made a number of has a majority share) will not be eligible Form 6100-3-1)13E Program oral presentations to the Tribal to be counted towards meeting the Subcontractor Performance Form and Operations Committee (TOC) on the MBE/WBE fair share objectives if they EPA Form 6100-4—DBE Program rule' s progress and solicited input. The do not meet the applicable SBA 8 (a) Subcontractor Utilization Form to all of TOC is comprised of 19 national tribal criteria , e .g . , see 13 CFR 124 . 109 (b ) . Of its DBE subcontractors , pursuant to representatives from the nine EPA course , tribes may continue to do sections 33 . 303 (e ) , (f) and (g), Regions that have federally recognized business with tribally owned or other respectively . tribes and EPA Senior Management; its companies which do not meet the Eighth , a tribal recipient that conducts role is to provide input into EPA applicable SBA 8 (a) criteria , they simply procurements will have to create and decision making affecting Indian would not count such procurements maintain a bidders list in accordance Country. On November 29 , 2000 , EPA Federal Register / Vol . 73 , No . 59 / Wednesday , March 26 , 2008 / Rules and Regulations 15911 representatives met with the TOC at the MBE/WBE procurement objective $ 250, 000 exemption or the exemption EPA Tribal Caucus Regional joint requirements for research relating to the for PPG eligible program grants under meeting in Miami , Florida , to discuss requirements of. the Clean Air Act, nor 40 CFR part 35 , subpart B . Finally, EPA the staff draft rule and to obtain further EPA 's statutory 8 % MBE/WBE believes that a number of tribes which tribal input into the rulemaking process, procurement objective requirements for otherwise would have to negotiate fair Starting in November , 2000 , EPA all other programs , exempt tribes , share objectives may elect instead to invited tribal recipients of EPA grants Therefore , tribes are not exempt from apply the objectives of another recipient and cooperative agreements to this rule , because it promotes the in accordance with the requirements of participate in outreach sessions held in utilization of all disadvantaged entities the rule . The rule will also provide cities around the country in order to in procurement under EPA financial tribes with a three-year phase-in period discuss the staff draft rule . EPA further assistance agreements , including tribally to comply with the fair share solicited tribal input into the owned businesses and businesses negotiation requirement . rulemaking at meetings with tribal owned by a member(s) of a tribe , officials/representatives at the 3 . Reporting a nd Recordkeeping Department of the Interior 2001 2 , Trigger for Fair Share Negotiations Requirements Conference on the Environment hosted The issue of increasing the dollar Some tribes expressed concerns that by the Bureau of Indian Affairs on amount of the trigger requiring keeping records of and reporting March 13-15 , 2001 , in Albuquerque , compliance with the fair share objective purchases for EPA funded grants would New Mexico and at the Reservation requirements and the corresponding impose a heavy burden on tribal Economic Summit and American Indian availability analysis was of special governments . Instead , they suggested Business Trade Fair (RES 2001 ) in concern to tribes awarded General basing reporting on the amount of Anaheim , California, on March 20 , Assistance Program grants . Comments money the tribe received rather than on 2001 . EPA further solicited tribal input also expressed the view that availability the amount of money it spent on outside in another meeting with the TOC on analysis preparation requirements supplies and services . April 24 , 2001 , in Miami , Florida. should apply only to tribes spending EPA considered these concerns and As part of its ongoing tribal 90 % or more of their grants on outside concluded that 4. 0 CFR part 31 already coordination on this rule , EPA held procurement. Other tribes expressed the requires tribes to comply with part 31 ' s meetings with tribal officials to discuss view that preparing availability analyses recordkeeping and reporting the staff draft rule in Boston, is too costly for them , especially for requirements , which included MBE/ Massachusetts on April 11 , 2001 and in smaller tribes . WBE recordkeeping and reporting . The Seattle , Washington on Mav 23 , 2001 . In response to concerns raised by Agency believes that basing EPA held further coordination meetings tribes , the trigger requiring compliance requirements on amounts received with tribal officials to discuss a draft of with the fair share objective rather than on amounts spent would be this Rule in Ocean Shores , Washington requirements has been increased to an inaccurate measurement of MBE/ during the week of January 28 , 2002 . On $250 ,000 from the $ 100 , 000 threshold WBE procurement utilization. EPA July 24 , 2003 , the proposed rule was contained in an earlier draft of the rule. currently requires financial assistance published in the Federal Register , with Also because of the nature of eligible recipients to report MBE/WBE a 180- day comment period. After the program grants which can be included accomplishments based on dollars spent rule was published in the Federal in Performance Partnership Grants on MBE/WBE procurements. Therefore , Register , EPA held 10 tribal meetings (PPGs) to tribes under 40 CFR part 35 , EPA is not adopting the suggested across the country to solicit comments subpart B , and the unique nature of change , However, because of comments and suggestions on the final rule . eligible recipients, the Agency is received requesting a reduction in the EPA has considered tribal concerns exempting PPG eligible program grants burden created by quarterly reporting , and written comments in the final rule . to tribes under 40 CFR part 35 , subpart EPA has reduced the reporting A summary of the nature of tribal B from the fair share negotiation requirement to semi -annually for concerns and EPA 's response follows : requirements . recipients who currently report on a 1 . Applicability of the Rule to Tribes Accordingly , only tribes receiving an quarterly basis . Recipients who EPA financial assistance agreement of currently report annually will continue Awards of Grants and Cooperative. more than $250 ,000 for any single to do so . Agreements to tribes are currently assistance agreement , or of more than governed by 40 CFR part 31 , " Uniform one financial assistance agreement with 4 . Compliance With the Good Faith Administrative Requirements for Grants a combined total of more than. $ 250 , 000 Efforts Requirements and Cooperative Agreements to State in any one fiscal year ( excluding PPG One comment objected to having to and Local Governments . " These are eligible program grants under 40 CFR advertise in newspapers ; a comment government wide requirements that part 35 , subpart B ) , will have to comply was also made that EPA should have been in effect since 1988 , Among with the fair share objective investigate alternative mechanisms that other entities subject to the regulations requirements . encourage a tribe to seek out MBEs/ are governments . The definition of The Agency believes that this change WBEs during the procurement process "Government" in 40 CFR 31 . 3 includes effectively addresses the concerns by without incurring an unreasonable * * * a federally recognized Indian setting a uniform standard applicable to financial burden, tribal government , " Many requirements all recipients , including tribes , rather Section 7 (b) of the Indian Self- contained in this rule are not new but than , for example , setting a standard Determination and Education rather are the same requirements based on amounts spent by tribes on Assistance Act requires tribal contained in 40 CFR part 31 , with outside procurement , which could pose governments to solicit tribally-owned which many tribes already have been implementation difficulties . EPA I businesses and/ or businesses owned by complying . For example , the reporting believes that most tribes will not have a member ( s) of a tribe , before and recordkeeping requirements are to comply with the fair share objective undertaking the six good faith efforts , already applicable to Indian tribes . In requirements under the final rule Tribes are currently subject to 40 CFR addition, neither EPA 's statutory 10 % because they will fall under the part 31 , which requires them to make 15912 Federal Register / Vol. 73 , No. 59 / Wednesday , March 26 , 2008 / Rules and Regulations good faith efforts to ensure that DBEs supply , distribution, or use of energy , report containing this rule and other are used whenever possible . EPA is EPA has concluded that this rule is not required information to the U . S . Senate , changing this requirement. EPA does likely to have any adverse energy the U . S . House of Representatives , and not believe that the good faith effort effects . the Comptroller General of the United requirements are unduly burdensome, 1. National Technology Transfer and States prior to publication of the rule in 5 . Phase4n Period Advancement Act the Federal Register . A Major rule One comment expressed a concern As noted in the proposed rule , section cannot take effect until 60 days after it about the timing of the phase-in period 12 ( d ) of the National g l Technolo y is published in the Federal Register. This action is not a major rule " as and the maximum amount of time Transfer and Advancement Act of 1995 " needed for the requirement to be ( "NTTAA " ) , Public Law 104-113 ) will be eff12 d defined ff 5 L .S . C. 804 ( 2 ) , This rule implemented . ( 15 U. S . C. 272 note) directs EPA to use ective May 27 , 2008 . EPA believes that the three-vear voluutary consensus standards in its List of Subjects phase-in period , which begins after the regulatory activities unless to do so final rule ' s effective date , allows tribes would be inconsistent with applicable 40 CFR Part 30 sufficient time to prepare for and law or otherwise impractical , Voluntary Environmental protection, comply with the requirements of the consensus standards are technical Administrative practice and procedure , rule , standards ( e.g. , materials specifications , Grant programs—enviropmental As required by section 7 (a) , EPA 's test methods , sampling procedures , and protection , Reporting and recordkeeping Tribal Consultation Official has certified business practices ) that are developed or requirements . that the requirements of the Executive adopted by voluntary consensus 40 CFR Part 31 Order have been met in a meaningful standards bodies . The NTTAA directs and timely manner . A copy of the EPA to provide Congress , through OMB , Accounting , Administrative practice certification is included in the docket explanations when the Agency decides and procedure , Grant programs , Indians , for this rule , not to use available and applicable Intergovernmental relations , Reporting G. Executive Order 13045: (Protection of voluntary consensus standards , This and recordkeeping requirements , Children From Environmental Health rule does not involve technical 40 CFR Part 33 Risks and Safety Risks) standards . Therefore , EPA is not Grant programs—environmental Executive Order 13045 : "Protection of considering the use of any voluntary protection . Children from Environmental Health consensus standards. Risks and Safety Risks " (62 FR 19885 , J. Executive Order 12898 : Federal 40 CFR Part 35 April 23 , 1997 ) applies to any rule that: Actions To Address Environmental Grant programs—environmental ( 1 ) is determined to be " economically Justice in Minority Populations and protection , Grant programs—lndians , significant" as defined under Executive Low-Income Populations Hazardous waste , Indians , Order 12866 , and ( 2 ) concerns any Executive Order (EO) 12898 ( 59 FR Intergovernmental relations , Reporting environmental health or safety risk that 7629 (Feb . 16 , 1994 )) establishes federal and recordkeeping requiremenks . EPA has reason to believe may have a executive policy on environmental 40 CFR Part 40 disproportionate effect on children. If justice . Its main provision directs Research and Demonstration Grants— the regulatory action meets both criteria , federal agencies , to the greatest extent Projects involving construction, EPA must evaluate the environmental practicable and permitted by law , to health or safety effects of the planned make environmental justice part of their Dated : March 18 , 2008 . rule on children and explain why the mission by identifving and addressing , Stephen L . Johnson, planned regulation is preferable to other as appropriate , disproportionately high Administrator, potentially effective and reasonably andAadverse human health or ■ For the reasons set out in the feasible alternatives considered by the environmental effects of their programs , preamble , title 40 , chapter I of the Code Agency • policies , and activities on minority of Federal Regulations is amended as EPA interprets Executive Order 13045 populations and low4ricame follows : as applying only to those regulatory populations in the United States, actions that are based on health or safety EPA has determined that this final PART 30- 4AMENDED] risks , such that the analysis required rule will not have disproportionately ■ 1 . The authority citation for part 30 under section 5-501 of the Order has high and adverse human health or continues to read as follows ; the potential to influence the regulation , environmental effects on minority or This rule is not subject to Executive low-income populations because it does Authority: 7 U . S .C . 135 et seq. ; 15 U. S ,C . Order 13045 because it does not not affect the level of protection 2601 et seq , ; 33 U. S.C. 1251 et seq.; 42 U. S .C. establish an environmental standard provided to human health or the 241 , 242 (b) , 2431 246 , 3oof, 300j-1 , 3ooj-2 , intended to mitigate health or safety environment. 300;-3 ; 1857 et seq. ; 8901 of seq. , 7401 et risks . seq. ; OMB circular A-110 ( 64 FR 54926 , K. Congressional Reviety Act October 8 , 1999) , H. Executive Order 13211 : Actions That The Congressional Review Act, 5 § 30.44 (Amended] Significantly Affect Energy Supply, U .S .C . 801 et seq . , as added by the Small Distribution , or Use Business Regulatory Enforcement a 24Section 30 ,44 is amended by This rule is not a " significant energy Fairness Act of 1996 , generally provides removing and reserving paragraph (b) . action " as defined in Executive Order that before a rule may take effect , the PART 31 —JAMENDED] 13211 , "Actions Concerning Regulations agency promulgating the rule must That Significantly Affect Energy Supply , submit a rule report, which includes a ■ 3 . The authority citation for part 31 Distribution, or Use" ( 66 FR 28355 (May copy of the rule , to each House of the continues to read as follows : 22 , 2001 )) because it is not likely to Congress and to the Comptroller General Authority: 7 U . S.C. 136 et seq. ; 15 U.S .C. have a significant adverse effect on the a,`. the United States . EPA will submit a 2601 et seq . ; 20 U . S .C . 4011 of seq. ; 33 U.S .C. Federal Register / Vol. 73 , No . 59 / Wednesday , March 26 , 2008 / Rules and Regulations 15913 1251 et seq. and 1401 at seq. ; 42 U , S .C, 300f Tribal Government) recipient or prime (c) To help remove barriers to the et seq. , 6901 et seq. , 7401 et seg. , and 9601. contractor follow the six good faith participation of DBEs in the award of et seq. efforts ? contracts under EPA financial assistance § 31 .36 [amended] Subpart D-Fair Share Objectives agreements ; and ■ 4 . Section 31 . 36 is amended by 33 . 401 What does this subpart require? ( d) To provide appropriate flexibility 33.402 Are there special rules for loans to recipients of EPA financial assistance removing and reserving paragraph (e) . under EPA financial assistance in establishing and providing PART 33-[ADDED3 agreements ? contracting opportunities for DBEs . 33 .403 What is a fair share objective? R 5 . Part 33 is added as fallaws : 33 .404 When must a recipient negotiate fair § 33.102 When do the requirements of this share objectives with EPA? part apply . PART 33-PARTICIPATION BY 33 .405 How does a recipient determine its The requirements of this part apply to fair share objectives? procurement under EPA financial DISADVANTAGED BUSINESS 33.406 M.av a recipient designate a lead assistance agreements performed ENTERPRISES IN UNITED STATES agency for fair share objective entirely within the United States , ENVIRONMENTAL PROTECTION negotiation purposes ? whether by a recipient to its prime AGENCY PROGRAMS 33 .407 How long do MBE and WBE fair contractor , for constructi on, e equipment , share objectives remain in effect? services and supplies , P P Subpart A-General Provisions 336408 Maya recipient. use race su and /or pP Sec, gender conscious measures as part of this § 31103 What do the terms in this part 33 . 101 What are the objectives of this part? program? mean? 33 . 102 When do the requirements of this 33 , 409 Maya recipient use quotas as part of part apply ? this program? Terms not defined below shall have 33 . 103 What do the terms in this part 33 .410 Cana recipient be penalized for the meaning given to them. in 40 CFR mean? failing to meet its fair share objectives? part 30 , part 31 and part 35 as 33 . 104 Mav a recipient apply for a waiver 33 .411 Who maybe exempted from this applicable. As used in this part : from the requirements of this part? subpart? Availability analysis means 33 , 105 What are the compliance and 33 , 412 Must an Insular Area or Indian documentation of the availability of enforcement provisions of this part? Tribal Government recipient negotiate MBEs and WBEs in the relevant 33 . 1. 05 What assurances must EPA financial fair share objectives? geographic market in relation to the assistance recipients obtain from their Subpart E--Recordkeeping and Reporting total number of firms available in that contractors ? 33 . 501 What are the recordkeeping areas 33 . 107 What are the rules governing Award official means the EPA availability of records , cooperation, and requirements of this part? Re Regional o Headquarters official intimidation and retaliation? 33 . 502 What are the reporting requirements i g of this part? delegated the authority to execute Subpart B-Certification 33 . 503 How does a recipient calculate MBE financial assistance agreements on 33 . 201 What does this subpart require? and WBE participation for reporting behalf of EPA. 33 . 202 How does an entity qualify as an purposes? Broker means a firm that does not MBE or WBE under EPA ' s 80/c statute? Appendix A to Part 33-Terms and itself perform , manage or supervise the 33 .203 How does an entity qualify as an Conditions work of its contract or subcontract in a MBE or WBE under EPA ' s 10 % statute? manner consistent with the normal 33 , 204 Where does an entity become Authority: 15 U. S .C. 637 note; 42 U. S ,C. business practices for contractors or certified under EPA's 8 % and 105% 4370d , 7601 note , 9605 (f) ; E . O. 11625 , 36 FR subcontractors in its line of business . statutes ? 19967 , 3 CFR , 1971. Comp . , p . 213 ; E. O. Business, business concern or 33 . 205 How does an entity become certified 12138 , 49 FR 296373 3 CFR, 1979 Comp ,., P . business enterprise means an entity by EPA? 393 ; E , O. 12432 , 48 FR 32551 , 3 CFR, 1983 organized for profit with a place of 33 .206 Is there a list of certified MBEs and Comp . , p. 198 . WBEs? business located in the United States , 33 . 207 Can an entity reapply to EPA for Subpart A-General Provisions and which operates primarily within the MBE or WBE certification? United States or which makes a 33 . 208 How long does an MBE or WBE § 33.101 What are the objectives of this significant contribution to the United certification from EPA last? part? States economv through payment of 33 . 209 CanEPA re-evaluate the MBE or The objectives of this part are : taxes or use of American products , WBE status of an entity after EPA ( a) To ensure nondiscrimination in materials or labor . certifies it to be an MBE or WBE? the award of contracts under. EPA Construction means erection, 33 . 210 Does an entity certified as an MBE financial assistance agreements. To that alteration, or repair (including dredging, or WBE by EPA need to keep EPA end , implementation of this rule with excavating , and painting) of buildings , informed of any changes which may respect to grantees , sub,,grantees , loan structures , or other improvements to affect the entity' s certification?reorprecipients , prime contractors, or real property , and activities in response 33 . 211 What is the prooess for appealing or . challenging an. EPA MBE or WBE subcontractors in particular States or to a release or a threat of a release of a certification determination? locales- notably those where there is no hazardous substance into the 33 . 212 What conduct is prohibited by this apparent history of relevant environment, or activities to prevent the subpart? discrimination-must comply with introduction of a hazardous substance Subpart C---Good Faith Efforts equal protection standards at that level , into a water supply . 33 . 301 What dues this subpart require? apart from the EPA DBE Rule ' s Disabled American means , with 33 . 302 Are thdoe any additional contract constitutional compliance as a national respect to an individual , permanent or administration requirements ? matter; temporary physical or mental 33 . 303 Are there special rules for loans (b ) To harmonize EPA' s DBE Program impa.irnient that substantially limits one under EPA financial assistance objectives with the U.S . Supreme or more of the major life activities of agreements? Court' s decision in Adarand such an individual ; a record of such an 33 . 304 Must a Native American (either as Constructors, Inc. v , Pena, 515 U .S . 200 impairment; or being regarded as having an individual, organization, Tribe or ( 1995 ) ; such an impairment. 15914 Federal Register / Vol . 73 , No . 59 / Wednesday , March 26 , 2008 / Rules and Regulations Disadvantaged business enterprise appears on the List of Qualified agreement or is a sub-recipient of such (DBE) means an entity owned or HUBZone Small Business Concerns agreement, including loan recipients controlled by a socially and maintained by the Small Business under the Clean Water State Revolving economically disadvantaged individual Administration . as described by Public Law 102-389 (42 Identified loan means a loan project Revolving Fund Fund Program , Drinking Water State d the, U . S . C , 4370d ) or an entity owned and or set-aside activity receiving assistance Bra of elds Cle nuprRnevoly ng Loan controlled by a socially and from a recipient of an EPA financial economically disadvantaged individual assistance agreement to capitalize a F Servund ices means a contractor 's labor, as described by Title X of the Clean Air revolving loan fund , which: Act Amendments of 1990 (42 U . S . C. { 11 In the case of the CWSRF Program , time or efforts provided in a manner 7601 note) ; a. Small Business Enterprise is a project funded from amounts equal al prac consistent with normal business (SBE ) ; a Small Business in a Rural Area to the capitalization rant; q practices which ci not involve the (SBRA) ; or a Labor Surplus Area Firm ( 2 ) In the case of the DWSRF Program , delivery of a specific end from , ether (LSAT) , a Historically Underutilized is a loan project or set-aside activity than documents ( e.g . , reports , design Business (HUB ) Zone Small Business funded from amounts u to the amount drawings , specifications) . p Small business, small business Concern , or a concern under a successor of the capitalization grant ; or concern or small business enterprise program. ( 3 ) In the case of the BCRLF Program , (SBE) means a concern , including its Disparity study means a comparison is a project that has been funded with affiliates , that is independently owned within the preceding ten years of the EPA financial assistance . available MBEs and WBEs in a relevant Insular area means the and operated , net dominant in the field geographic market with their actual Commonwealth of Puerto Rica or an of operation in which it bidding , and usage by entities procuring in the territoryor possession of the United y qualified d a small business under the p criteria and size standards in 13 CFR categories of construction, equipment , States. part 121 , services and supplies . joint venture means an association of Small business in a rural area (SBRA) Equipment means items procured a DBE firm and one or more other firms means a small business operating in an under a financial assistance agreement to carry out a single , for -profit business area identified as a rural county with a. as defined by applicable regulations (for enterprise , for which the parties code 6-9 in the Rural - Urban continuum example 40 CFR 30 . 2 and 40 CFR 31 . 3 ) combine their property , capital , efforts , Classification Code developed by the for the particular type of financial skills and knowledge , and in which the United States Department of Agriculture assistance received . DBE is responsible for a distinct , clearly in 1980 . Fair share objective means an defined portion of the work of the objective expressing the percentage of contract and whose share in the capital Supplies means items procured under p a financial assistance agreement as MBE or WBE utilization expected absent contribution , control , management , defined by applicable regulations for the the effects of discrimination . risks , and profits of the joint venture are particular type of financial assistance Financial assistance agreement means commensurate with its ownership received . grants or cooperative agreements interest. United States means any of the awarded by EPA . The term includes Labor surplus area firm (LSAF) means several States , the District of Columbia , grants or cooperative agreements used to a concern that together with its first-tier the Commonwealth of Puerto Rico and. capitalize revolving loan funds , subcontractors will perform any other territories and possessions of including , but not limited to , the Clean substantially in labor surplus areas ( as the United States , Water State Revolving Loan Fund identified by the Department of Labor in Women 's business enterprise (WBE) ( CWSRF) Program under Title VI of the accordance with 20 CFR part 654 ) . means a business concern which is at Clean Water Act, as amended , 33 U . S . C. Performance is substantially in labor least 51 % owned or controlled by 1381 et seq. , the Drinking Water State surplus areas if the costs incurred under women for purposes of EPA 's 8 % Revolving Fund (DWSRF) Program the contract on account of statute or a business concern which is under section 1452 of the Safe Drinking manufacturing , production or at least 51 % owned and controlled by Water Act, 42 U .S .G. 300j-12 , and the performance of appropriate services fn women for purposes for EPA ' s 10 % Brownfields Cleanup Revolving Loan labor surplus areas exceed 50 percent of statute . Determination of ownership by Fund (BCRLF) Program under section the contract price. a married woman in a community 104 of the Comprehensive Minority business enterprise (MBE) property jurisdiction will not be affected Environmental Response , Compensation means a Disadvantaged Business by her. husband ' s 50 percent interest in and Liability Act , 42 U. S . C , 9604 . Enterprise {DBE ) other than a Small her share . Similarly , a business concern Good foit� efforts means the race and/ Business Enterprise ( SBE) , a Labor which is more than 50 percent owned or gender neutral measures described in Surplus Area Firm (LSAF) , a Small by a married man will not become a subpart C of this part. Business in Rural Areas ( SBRA) , or a qualified WBE by virtue of his wife ' s 50 Historically black college or university Women ' s Business Enterprise (WBE ) , percent interest in his share , (HBCU) means an institution Minority institution means an determined by the Secretary of accredited college or university whose § 31104 May recipients apply for a waiver Education to meet the requirements of enrollment of a single designated group from the requirements of this part? 34 CFR part 608q or a combination of designated groups ( a) A recipient may apply for a waiver HUB2one means a historically (as defined by the Small Business from any of the requirements of this part underutilized business zone, which is Aaministration regulations at 13 CFR that are not specifically based on a an area located within one or more part 124) exceeds 50 % of the total statute or Executive Order, by qualified census tracts , qualified enrollment. submitting a written request to the metropolitan counties , or lands within Native American means any Director of the Office of Small and the external boundaries of an Indian individual who is an American Indian , Disadvantaged Business Utilization . reservation. Eskimo , Aleut, or Native Hawaiian. (b) The request must document HUBZone small business concern Recipient means an entity that special or exceptional circumstances means a small business concern that receives an EPA financial assistance that make compliance with the Federal Register / Vol. 73 , No, 59 / Wednesday , March 26 , 2008 / Rules and Regulations 15915 requirement impractical , including a (c) Wholly or partly suspending or properly certified as required by this specific proposal addressing how the terminating the current award ; or subpart. recipient intends to achieve the (d) Withholding further awards for the (b ) EPA 's DBE Program is primarily objectives of this part as described in project or program, based on two statutes . Public Law 102— § 33 , 101 , The request must show that; 389 , 42 U. S . C. 4370d , provides for an ( 1 ) There is a reasonable basis to § 83.106 What assurances must EPA 8 % objective for awarding contracts conclude that the recipient could financial assistance recipients obtain from under EPA financial assistance achieve a level of MBE and WBE their contractors? The recipient must ensure that each agreements to business concerns or tr participation consistent with the other organizations owned or controlled objectives of this part using different or Procurement contract it awardscontains by socially and economically innovative means other than those that the term and condition specified in disadvantaged individuals , including are provided in subparts C or D of this Appendix e with this part concerning HBCUs and women ("EPA 's 8 % part, compliance th the requirements of statute " ) , Title X of the Clean Air Act this part, The recipient must also ensure ( 2) Conditions in the recipient' s p P Amendments of 1990 , 42 U . S . C . 7601 urisdic#ion areappropriate far that this term and. condition is included 1note , provides fora 90 % objective for implementing therequest; and in each procurement contract awarded P g by an entity receiving an identified loan awarding contracts under EPA financial ( 3 ) The request is consistent with under a financial assistance agreement assistance agreements for research applicable law . ( c) The OSDBU Director has the to capitalize a revolving loan fund , relating to such amendments to businessconcerns or other organizations owned authority to approve a recipient's § 33.107 What are the rules governing and controlled by socially and request, If the OSDBU Director grants a availability of records, cooperation , and economically disadvantaged individuals recipient' s request, the recipient may intimidation and retaliation ? ("EPA ' s 10% statute " ) , administer its program as provided in ( a) Availability of records. ( 1 ) In the request, subject to the following responding to requests for information § 33.202 Now does an entity qualify as an MBE or WBE under EPA's 6% statute? conditions : concerning any aspect of EPA ' s DBE Touali as an MBE or WBE under ( 1 ) The recipient's level of MBE and Program , EPA complies with the ° WBE participation continues to be provisions of the Federal Freedom of EPA , q s e /° statute , an entity must consistent with the objectives of this Information. and Privacy Acts ( 5 U . S , G . establish that it is owned or controlled by socially and economically Part; 552 and 552a) . EPA may make available (2) There is a reasonable limitation on to the public any information disadvantaged individuals who are of the duration of the recipient 's modified concerning EPA 's DBE Program release goad character and citizens of the program ; and of which is not prohibited by Federal United States . An entity need not ( 3 ) Any other conditions the OSDBU law or regulation , including EPA's demonstrate potential for success . Director makes on the grant of the Confidential Business Information (a) Ownership or control . waiver , regulations at 40 CFR part 2 , subpart B . Ownership " and " control " shall have (d) The OSDBU Director may end a (2 ) EPA recipients shall safeguard the same meanings as set forth in 13 program waiver at any time upon notice from disclosure to unauthorized persons CFR 124 . 105 and 13 CFR 124 . 9061 to the recipient and require a recipient information that may reasonably be respectively. (See also 13 CFR 124 . 109 to comply with the provisions of this considered as confidential business for special rules applicable to Indian part. The OSDBU Director mail also information , consistent with Federal , tribes and Alaska Native Corporations ; extend the waiver if he or she state , and local law . 13 CFR 224 * 110 for special rules determines that all requirements of (b) Cooperation . All participants in applicable to Native Hawaiian paragraphs (b) and (c ) of this section EPA 's DBE Program are required to Organizations) . ( b) Socially disadvantaged individual. continue to be met. Any such extension cooperate fully and promptly with EPA , A socially disadvantaged individual shall be for no longer than the period EPA Private Certifiers and EPA a originally set for the duration of the recipients in reviews , investigations , Person who has been subjected to racial program waiver. and other requests for information, or ethnic prejudice or cultural bias Failure to do so shall be a ground for because of his or her identity as a § 33105 What are the compliance and appropriate action a against thepartymember of a group without regard to his enforcement provisions of this part? g or her individual qualities and as I in accordance with § 33 . 105 . If a recipient fails to comply with any (c) Intimidation and retaliation . A further defined by the implementing of the requirements of this part , EPA regulations e section 8 (a ) ( 5) of the recipient, contractor , or any other may take remedial action under 40 CFR participant in EPA 's DBE Program must Small Business Act (al U13S . C . 637 ( a) ( 5 ) ; parts 30 , 31 or 35 , as appropriate , or any not intimidate , threaten , coerce , or 13 CFR 124 . 103 ; see also 13 CFR other action authorized by lave , discriminate against any individual or 124, 109 for special rules applicable to including ,but not limited to , Indian. tribes and Alaska Native firm for the purpose of interfering with enforcement under 18 U, S , C , 1001 and/ any right or privilege secured by this Corporations ; 13 CFR 124 . 110 for or the Program Fraud Civil Remedies part, Violation of this prohibition shall special rules applicable to Native Act of 1986 ( 31 U . 6 , C. 3801 et seq.) , be a ground for appropriate action Hawaiian Organizations) . Examples of the remedial actions under against the party involved in accordance ( c) Economically disadvantaged 40 CFR parts 30 , 31 , and 35 include , but individual. An economically with § 33105 are not limited to : . , disadvantaged individual is a socially ( a) Temporarily withholding cash Subpart S—Certification disadvantaged individual whose ability payments pending correction of the to compete in the free enterprise system deficiency by the recipient or more § 31201 What does this subpart require? is impaired due to diminished capital severe enforcement action by EPA; (a) In order to qualify and participate and credit opportunities , as compared to (b) Disallowing all or part of the cost as an MBE or WBE prime or , others in the same business area who of the activity or action not in subcontractor for EPA recipients under are not socially disadvantaged and as compliance ; EPA' s DBE Program , an entity must be further defined by section 8 (a) (6 ) of the 15916 Federal Register / Vol . 73 , No. 59 / Wednesday , March 26 , 2008 / Rules and Regulations Small Business Act ( 15 U . S . C . 637 (x) (6 )) to compete in the free enterprise system ( 2 ) As a party to a joint venture , a and its implementing regulations ( 13 is impaired due to diminished capital person who is not an economically CFR 124 . 104 ) . (See also 13 CFR 124 . 109 and credit opportunities , as compared to disadvantaged individual , or an entity for special rules applicable to Indian others in the same business area who that is not owned and controlled by a tribes and Alaska Native Corporations ; are not socially disadvantaged and as socially and economically 13 CFR 1. 24 . 11. 0 for special rules further defined by section 8 (a) (6) of the disadvantaged individual , may not be a applicable to Native Hawaiian Small Business Act. ( 15 U. S . C. 637 (a)( 6 )) party to more than two awarded Organizations ) . Under EPA ' s DBE and its implementing regulations ( 13 contracts in a fiscal year solely by joint Program, an individual claiming CPR 124 . 104 ) . (See also 13 CFR 124 , 109 venture with a socially and disadvantaged status must have an for special rules applicable to Indian economically disadvantaged individual initial and continued personal net worth tribes and Alaska Native Corporations ; or entity , of less than $750 . 000 . 13 CFR 124 . 110 for special rules (d ) HBCU. An HBCU automatically applicable to Native Hawaiian § 33.204 Where does an entity become qualifies as an entity owned or Organizations ) , Under EPA ' s DBE certified under EPA ' s 8% and 10% statutes? controlled by socially and economically Program , an individual claiming (a ) In order to participate as an MBE disadvantaged individuals , disadvantaged status must havan or WBE prime or subcontractor for EPA ( e ) Women . Women are deemed to be initial and continued personal net worth recipients under EPA 's DBE Program , an socially and economically of less than $ 750 ,000 . entity must first attempt to be certified disadvantaged individuals , Ownership ( d ) Presumptions . In accordance with by the following : or control must be demonstrated Title X of the Clean Air Act ( 1 ) The United States Small Business pursuant to paragraph (a) of this section , Amendments of 1990 , 42 U .S . C . 7601 Administration ( SBA) , under its 8 (a ) which may be accomplished by note ; Black Americans , Hispanic Business Development Program ( 13 CFR certification under § 33 . 204 , Americans , Native Americans , Asian part 124 , subpart A ) or its Small § 33.203 How does an entity qualify as an Americans , Women and Disabled Disadvantaged Business (SDB ) Program , MBE or WBE under EPA's 10% statute? Americans are presumed to be socially ( 13 CPR part 124 , subpart B ) ; To qualify as an MBE or WBE under and economically disadvantaged ( 2 ) The United States Department of EPA 's 10 % statute , an entity must individuals . In addition , the following Transportation (DOT) , under its establish that it is owned and controlled institutions are presumed to be entities regulations for Participation by by socially and economically owned and controlled by socially and Disadvantaged Business Enterprises in disadvantaged individuals who are of economically disadvantaged DOT Programs (49 CFR parts 23 and 26 ) ; good character and citizens of the individuals : HBCUs , Minority or United States . Institutions (including Tribal Colleges ( 3 ) an Indian Tribal Government , (a ) Ownership and control. An entity and Universities and Hispanic- Serving State Government, local Government or must be at least 51 % owned by a Institutions) and private and voluntary independent private organization in socially and economically organizations controlled by individuals accordance with EPA 's 8 % or lo % disadvantaged individual , or in the case who are socially and economically statute as applicable . of a publicly traded company , at least disadvantaged , ( 2) Such certifications shall be 51 % of the stock must be owned by ane ( e ) Individuals not members of considered acceptable for establishing or more socially and economically designated groups. Nothing in this MBE or WBE status , as appropriate , disadvantaged individuals , and the section shall prohibit any member of a under EPA' s DBE Program as lung as the management and daily business racial or ethnic group that is not certification meets EPA 's U . S . operations of the business concern must designated as socially and economically citizenship requirement under § 33 . 202 be controlled by such individuals . ( See disadvantaged under paragraph ( d) of or (3 ) An entity may only apply to EPA also 13 CFR 124 . 109 for special rules this section from establishing that they for MBE or WBE certification under the applicable to Indian tribes and Alaska have been impeded in developing a procedures set forth in § 33 . 205 if that Native Corporations ; 13 CFR 124 , 110 for business concern as a result of racial or entity first is unable to obtain MBE or special rules applicable to Native ethnic discrimination . WBE certification under paragraphs (a) Hawaiian Organizations ) . (f) rebuttal of presumptions. The (b ) Socially disadvantaged individual, presumptions established by paragraph ( 1 ) through ( 3 ) of this section . A socially disadvantaged individual is a ( d) of this section may be rebutted in (b ) (Reserved] . person who has been subjected to racial accordance with § 33 . 209 with respect § 33.205 How does an entity become or ethnic prejudice or cultural bias to a particular entity if it is reasonably certified by EPA? because of his or her identity as a established that the individual at issue (a) Pilins an application . In member of a group without regard to his is not experiencing impediments to accordance with § 33 . 204 , an entity may or her individual qualities and as developing such entity as a result of the apply to EPA ' s Office of Small and further defined by the implementing individual 's identification as a member Disadvantaged Business Utilization regulations of. section 8 (a) ( 5 ) of the of a specified group , (EPA OSDBU ) for certification as an Small Business Act ( 15 U. S . C. 637 (a)( 5 ) ; (g) Joint ventures , MBE or WBE. EPA 's Regiona ) Offices 13 CFR 124 . 103 ; see also 13 CFR ( 1 ) A joint venture may be considered will provide further information and 124 . 109 far special rules applicable to owned and controlled by socially and required application forms to any entity Indian tribes and Alaska Native economically disadvantaged interested in MBE or WBE certification . Corporations : 13 CPR 124 . 110 for individuals , notwithstanding the size of The applicant must attest to the special rules applicable to Native such joint venture , if a party to the joint accuracy and truthfulness of the Hawaiian Organizations ) , venture is an entity that is owned and information on the application form. (c) Economically disadvantaged controlled by a socially and This shall be done either in the form of individual. An economically economically disadvantaged individual , an affidavit sworn to by the applicant disadvantaged individual is a socially and that entity owns 510% of the joint before a person who is authorized by disadvantaged individual whose ability venture , state law to administer oaths or in the Federal Register / Vol. 73 , No . 59 / Wednesday , March 26 , 2008 / Rules and Regulations 15917 form of an unsworn declaration application for certification. EPA (v) Obtain a statement from the entity executed under penalty of perjury of the OSDBU will issue a written decision to of the type of work it prefers to perform laws of the United States . The the entity setting forth EPA OSDBU's for EPA recipients under the DBE application must include evidence reasons for disapproval . Program and its preferred locations for demonstrating that the entity is owned (e) Evaluation standards . ( 1 ) An performing the work, if any ; and Or controlled by one or more individuals entity ' s eligibility shall be evaluated on (vi) Obtain or compile a list of the claiming disadvantaged status under the basis of present circumstances . An equipment owned by or available to the EPA ' s 8 % statute or owned and entity shall not be. denied certification entity and the licenses the entity and its controlled by one or more individuals based solely on historical information key personnel possess to perform the claiming disadvantaged status under indicating a lack of ownership and/ or work it seeks to do for EPA recipients EPA ' s 10 % statute , along with control of the firm by socially and under the DBE Program , certifications or narratives regarding the economically disadvantaged individuals disadvantaged status of such at some. time in the past, if the entity § 33.206 Is there a list of certified MBEs individuals . In addition , the application currently meets the ownership and/or and WBEs? must include documentation of a denial control standards of this subpart, EPA OSDBU will maintain a List of of certification by a Federal agency , ( 2 ) Entities seeking MBE or WBE certified MBEs and WBEs on EPA State government , local government , certification shall cooperate fully with 05DBU 's Home Pae on the Internet. Indian Tribal government , or requests for information relevant to the g Any interested person may also obtain independent private organization , if certification process . Failure or refusal applicable, a copy of the list from EPA OSDBU , p to provide such information is a ground Application processing. EPA for denial of certification. OSDBU will advise each applicant § 33.207 Can an entity reapply to EPA for within 15 days , whenever practicable , (3 ) In making its certification MBE or WBE certification ? after receipt of an application whether determination , EPA OSDBU may An entity which has been denied the application is complete and suitable consider whether an entity has exhibited a pattern of conduct MBE or WBE certification may reapply for evaluation and , if not, what indicating its involvement in attempts for certification at any time 12 months additional information or action is or more after the date of the most recent required . EPA OSDBU shall make its to evade or subvert the intent or determination by EPA OSDBU to certification decision within 30 days of requirements of the DBE Program . decline the application . receipt of a complete and suitable (4) EPA OSDBU shall not consider the application package , whenever issue of whether an entity performs a § 33208 Mow long does an MBE or WBE practicable . The burden is on the commercially useful function in making certification from EPA last? applicant to demonstrate that Chase its certification determination.Consideration of whether an entity Once EPA OSDBU certifies an entity y individuals claiming disadvantaged to be an MBE or WBE by placing it on status own or control the entity under performs a commercially useful the EPA OSDBU list of certified MBEs EPA 's 8 % statute or own and control the function or is a regular dealer pertains and WBEs specified in § 33 . 206 , the entity under EPA 's 1Q % statutee solely to counting toward MBE and entity will generally remain on the list (c) Ownership and/or control WBE objectives as provided in subpart for a period of three years ears from the date determination . EPA OSDBU first will E of this part. of its certification . To remain an the list determine whether those individuals (5 ) Information gathered as t of the after three years , an entity must submit claiming disadvantaged status own or certification process that may a new application and receive a new control the applicant entity under EPA's reasonably be regarded as proprietary or certification. 8 % statute or own and control the other confidential business information applicant entity under EPA's 1. 0 % will be safeguarded from disclosure to § 33.209 Can EPA re-evaluate the MBE or statute . If EPA OSDBU determines that unauthorized persons , consistent with WBE status of an entity after EPA certifies the applicant does not meet the applicable Federal , State , and local law . It to be an MBE or WBE? ownership and/or control requirements (6) To assist in making EPA O SDBU' s (a) EPA OSDBU may initiate a of this subpart, EPA OSDBU will issue certification determination , EPA certification determination whenever it a written decision to the entity rejecting OSDBU itself may take the following receives credible information calling the application and set Forth the reasons steps : into question an entity ' s eligibility as an for disapproval . (i ) Perform an on-site visit to the P ( d) Disadvantaged determination . offices of the entity , Interview the MBE or WBE. Upon its completion of acertification determination , EPA Once EPA OSDBU determines whether principal officers of the entity and OSDBU will issue a written an applicant meets the ownership and/ review their resumes and/or work determination regarding the MBE or or control requirements of this subpart, histories . Perform an on-site visit to WBE status of the questioned entity . EPA OSDBU will determine whether the local job sites if there are such sites on applicable disadvantaged status which the entity is working at the time (b) If EPA OSDBU finds that the entity requirements under EPA ' s 81% or io % of the certification investigation . does not qualify as an MBE or WBE , statute have been met. If EPA OSDBU Already existing site visit reports may EPA OSDBU will decertify the entity as determines that the applicable be relied upon in making the an MBE or WBE , and immediately disadvantaged status requirements have certification ; remove the entity from the EPA OSDBU been met, EPA OSDBU shall notify the (ii) if the entity is a corporation , list of certified MBEs and WBEs. applicant that it has been certified and analyze the ownership of stock in the ( c) If EPA OSDBU finds that the entity place the MBE or WBE on EPA entity ; continues to qualify as an MBE or WBE , OSDBU 's list of qualified MBEs and (iii ) Analyze the bonding and the determination remains in effect for WBEs . If EPA OSDBU determines that financial capacity of the entity; three years from the date of the decision the applicable disadvantaged status (iv) Determine the work history of the under the same conditions as if the requirements have not been met, EPA entity , including contracts it has entity had been granted MBE or WBE OSDBU will reject the entity ' s received and work it has completed; certification under § 33 .205 . Electronic Code of Federal Regulations : Page 1 of 43 Horn ,,,,_P,P9!y > �Ae.czuti_vt.Bi.an h. > Code_of Federai,,..lje9ut ti,on5 > Electronic,Cgoe of FgdeCd_I..R 9YldSigns � Loctron, � C't��c� �a�'F6der ]Azil�rI>���;fnE! : v 01, TIM a - Dais is current as of July 14 ; 2008 Title 40 : Protection of Environment Browse Previous i Browse Next PART 31 —UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS AND COOPERATIVE AGREEMENTS TO STATE AND LOCAL GOVERNMENTS Section Contents S .u. . bpart .A—General fi 31 1 Purpose and scope_of this part J31 .2 Scope of subpart ,§ 31 . 3 Definitions . §_ 3,1,,4;___Applicabiity . $ 31 . 5 Effect on other issuances . 31 . 6 Additions and exceptions . Sub,part._B_—Pre-Award._ Requ,i ramerAl § 31 . 10 Forms for applyin for grants j.31 , 11 State plans 31 . 12ecial�c _ t or sqbarant conditions for "high -risk" aranteeh., §_31 1..0__ Prtnc ai environmental statu.to provisions pkaible to ,EPA ,assistance _awards . Subpart C—Past-Award Requirements FinancialAdm,inistratipn. § 31 . 20 Standards for financial man agernEnt _stems , 31 .21 Payment , §_ 31 . 22 AllowaWi costs 31 .23 Period of availability of funds §_„31 24__, Ma_tchi,ng_or cost.„$ kering , S 31 . 25 Program income § 31 .26 Non - Federal audit , Changes , Proper and Subawards § 31 .30 Changes. 6 31 . 31 Real -property , §31 . 32 Equipment, & 31 33 Sup ' es 31 ,14 Copyrights , §.31 .35 Subawards to_d..ebarred and suspendedpartes, 31 . 36 Procurement § 31 . 37 Suborants § 31_. 38 Indian Self Deterrninatian Act http : //ecfr. gpaaccess . gov/cgi/t/text/text-idx?c=ecfr& sid=b65e02acS 1 c4d8ab42b4f619e4cf4. . . 7/ 16/2008 hiectronic Code of Federal Regulations : Page 19 of 43 instructions from the Federal agency . (g ) Right to transfer title, The Federal awarding agency may reserve the right to transfer title to the Federal Government or a third party named by the awarding agency when such a third party is otherwise eligible under existing statutes . Such transfers shall be subject to the following standards : ( 1 ) The property shall be identified in the grant or otherwise made known to the grantee in writing . (2 ) The Federal awarding agency shall issue disposition instruction within 120 calendar days after the end of the Federal support of the project for which it was acquired . If the Federal awarding agency fails to issue disposition instructions within the 120 calendar-day period the grantee shall follow 31 , 32( e) . (3 ) When title to equipment is transferred , the grantee shall be paid an amount calculated by applying the percentage of participation in the purchase to the current fair market value of the property . § 31 . 33 Supplies . E t0p. ( a ) Titie , Title to supplies acquired under a grant or subgrant will vest , upon acquisition , In the grantee or subgrantee respectively . ( b ) Disposition. If there is a residual inventory of unused supplies exceeding $ 5 ,000 in total aggregate fair market value upon termination or completion of the award , and if the supplies are not needed for any other federally sponsored programs or projects , the grantee or subgrantee shall compensate the awarding agency for its share . 31 .34 Copyrights . L !_top The Federal awarding agency reserves a royalty-free , nonexclusive , and irrevocable license to reproduce , publish or otherwise use , and to authorize others to use , for Federal Government purposes : (a ) The copyright in any work developed under a grant, subgrant, or contract under a grant or subgrant; and (b ) Any rights of copyright to which a grantee , subgrantee or a contractor purchases ownership with grant support. § 31 .36 Subawards to debarred and suspended parties . Grantees and subgrantees must not make any award or permit any award (subgrant or contract ) at any tier to any party which is debarred or suspended or is otherwise excluded from or Ineligible for participation in Federal assistance programs under Executive Order 12549 , " Debarment and Suspension . " § 31 .36 Procurement. top (a) States . When procuring property and services under a grant, a State will follow the same policies and procedures it uses for procurements from its non-Federal funds . The State will ensure that every purchase order or other contract includes any clauses required by Federal statutes and executive orders and their implementing regulations . Other grantees and subgrantees will follow paragraphs (b) through (i ) in this section . idx?c=ecfr& sid=b65e02ac51c4d8ab42b4f619e4cf4 . . , 7/ 16/2008 http : //ecfr . gpoaccess . gov/cgi/t/text/text- f✓iectronic lode of Pederal Regulations : Page 20 of 43 (b ) Procurement standards. ( 1 ) Grantees and subgrantees will use, their own procurement procedures which reflect applicable State and local laws and regulations , provided that the procurements conform to applicable federal law , the standards identified in this section , and if applicable , §31 . 38 . (2 ) Grantees and subgrantees will maintain a contract administration system which ensures that contractors perform in accordance with the terms , conditions , and specifications of their contracts or purchase orders . (3) Grantees and subgrantees will maintain a written code of standards of conduct goveming the performance of their employees engaged in the award and administration of contracts . No employee , officer or agent of the grantee or subgrantee shall participate in selection , or in the award or administration of a contract supported by Federal funds if a conflict of interest, real or apparent, would be involved . Such a conflict would arise when : (1 ) The employee , officer or agent, (ii ) Any member of his immediate family , (iii) His or her partner, or (iv) An organization which employs , or is about to employ , any of the above , has a financial or other interest in the firm selected for award. The grantee' s or subgrantee' s officers , employees or agents will neither solicit nor accept gratuities , favors or anything of monetary value from contractors , potential contractors , or parties to subagreements . Grantee and subgrantees may set minimum rules where the financial interest is not substantial or the gift is an unsolicited Item of nominal intrinsic value . To the extent permitted by State or local law or regulations , such standards or conduct will provide for penalties , sanctions , or other disciplinary actions for violations of such standards by the grantee's and subgrantee' s officers , employees , or agents , or by contractors or their agents . The awarding agency may in regulation provide additional prohibitions relative to real , apparent, or potential conflicts of interest. (4) Grantee and subgrantee procedures will provide for a review of proposed procurements to avoid purchase of unnecessary or duplicative items . Consideration should be given to consolidating or breaking out procurements to obtain a more economical purchase . Where appropriate , an analysis will be made of lease versus purchase alternatives , and any other appropriate analysis to determine the most economical approach . (5 ) To foster greater economy and efficiency , grantees and subgrantees are encouraged to enter into State and local intergovernmental agreements for procurement or use of common goods and services . (6) Grantees and subgrantees are encouraged to use Federal excess and surplus property in lieu of purchasing new equipment and property whenever such use is feasible and reduces project costs . (7 ) Grantees and subgrantees are encouraged to use value engineering clauses in contracts for construction projects of sufficient size to offer reasonable opportunities for cost reductions . Value engineering is a systematic and creative ansylsis of each contract item or task to ensure that its essential function is provided at the overall lower cost. (8) Grantees and subgrantees will make awards only to responsible contractors possessing the ability to perform successfully under the terms and conditions of a proposed procurement. Consideration will be given to such matters as contractor integrity , compliance with public policy , record of past performance , and financial and technical resources . (9 ) Grantees and subgrantees will maintain records sufficient to detail the significant history of a procurement . These records will include , but are not necessarily limited to the following: rationale for the method of procurement , selection of contract type , contractor selection or rejection , and the basis for the contract price . ( 10 ) Grantees and subgrantees will use time and material type contracts only— ( 1) After a determination that no other contract is suitable , and (it) If the contract includes a ceiling price that the contractor exceeds at its own risk. http ://ecfr . gpoaccess . aov/cgi/t/text/text- idx ?c=eefr& sid=b65e0?ac51 c4d8ab42b4f619e4cf4 . . . 7/ 16/2008 Electronic Code of Federal Regulations : Page 21 of 43 ( 11 ) Grantees and subgrantees alone will be responsible , in accordance with good administrative practice and sound business judgment, for the settlement of all contractual and administrative issues arising out of procurements . These issues include , but are not limited to source evaluation , protests , disputes , and claims . These standards do not relieve the grantee or subgrantee of any contractual responsibilities under its contracts . Federal agencies will not substitute their judgment for that of the grantee -or subgrantee unless the matter is primarily a Federal concern . Violations of law will be referred to the local , State , or Federal authority having proper jurisdiction . (12) Grantees and subgrantees will have protest procedures to handle and resolve disputes relating to their procurements and shall in all instances disclose Information regarding the protest to the awarding agency . A protestor must exhaust all administrative remedies with the grantee and subgrantee before pursuing a protest with the Federal agency. Reviews of protests by the Federal agency will be limited to : ( i ) Violations of Federal law or regulations and the standards of this section (violations of State or local law will be under the jurisdiction of State or local authorities) and ( li ) Violations of the grantee's or subgrantee's protest procedures for failure to review a complaint or protest. Protests received by the Federal agency other than those specified above will be referred to the grantee or subgrantee . (c) Competition . ( 1 ) All procurement transactions will be conducted in a manner providing full and open competition consistent with the standards of §31 .36 . Some of the situations considered to be restrictive of competition include but are not limited to : (i ) Placing unreasonable requirements on firms in order for them to qualify to do business , (ii) Requiring unnecessary experience and excessive bonding , ( iii ) Noncompetitive pricing practices between firms or between affiliated companies , (iv) Noncompetitive awards to consultants that are on retainer contracts , (v) Organizational conflicts of interest, (vi ) Specifying only a "brand name" product instead of allowing "an equal" product to be offered and describing the performance of other relevant requirements of the procurement, and (vii ) Any arbitrary action in the procurement process . (2 ) Grantees and subgrantees will conduct procurements in a manner that prohibits the use of statutorily or administratively imposed in-State or local geographical preferences in the evaluation of bids or proposals , except in those cases where applicable Federal statutes expressly mandate or encourage geographic preference . Nothing in this section preempts State licensing laws . When contracting for architectural and engineering (A/E) services , geographic location may be a selection criteria provided its application leaves an appropriate number of qualified firms , given the nature and size of the project , to compete for the contract. (3) Grantees will have written selection procedures for procurement transactions . These procedures will ensure that all solicitations: (i ) Incorporate a clear and accurate description of the technical requirements for the material , product, or service to be procured . Such description shall not, in competitive procurements , contain features which unduly restrict competition . The description may include a statement of the qualitative nature of the material ; product or service to be procured , and when necessary , shall set forth those minimum essential characteristics and standards to which it must conform if n is to satisfy its intended use . Detailed produpt specifications should be avoided If at all possible , When it is impractical or uneconomical to make a clear and accurate description of the technical requirements , a "brand name or equal" description may be used as a means to define the performance or other salient requirements of a procurement. The specific features of the named brand which must be met by offerors shall be clearly stated ; and (li ) Identify all requirements which the offerors must fulfill and all other factors to be' used in evaluating bids or proposals , http : //ecfr . >>uuoaccess. >7ov/esri/t/te3ct/texf -idx ? c =ecftRy. sirl =hFiSP(lpar5 i rdrlRal�d7hdfA14Pd� ie "711 911nn9 Electronic Code of Federal Regulations : Page 22 of 43 (4) Grantees and subgrantees will ensure that all prequalified lists of persons , firms , or products which are used in acquiring goods and services are current and include enough qualified sources to ensure maximum open and free competition , Also , grantees and subgrantees will not preclude potential bidders from qualifying during the solicitation period . (5 ) Construction grants awarded under Title II of the Clean Water Act are subject to the following "Buy American" requirements in paragraphs (c )(5 ) ( ! Hill ) of this section . Section 215 of the Clean Water Act requires that contractors give preference to the use of domestic material in the construction of EPA - funded treatment works . (i ) Contractors must use domestic construction materials in preference to nondomestic material if it is priced no more than 6 percent higher than the bid or offered price of the nondomestic material , including all costs of delivery to the construction site and any applicable duty , whether or not assessed . The grantee will normally base the computations on prices and costs in effect on the date of -opening bids or proposals . (ii ) The award official may waive the Buy American provision based on factors the award official considers relevant , including : (A) Such use is not in the public interest; ( B) The cost is unreasonable ; ( C ) The Agency's available resources are not sufficient to implement the provision , subject to the Deputy Administrator's concurrence ; ( D) The articles , materials or supplies of the class or kind to be used or the articles , materials or supplies from which they are manufactured are not mined , produced or manufactured in the United States in sufficient and reasonably available commerical quantities or satisfactory quality for the particular project; or ( E ) Application of this provision is contrary to multilateral government procurement agreements , subject to the Deputy Administrator' s concurrence . (iii ) All bidding documents , subagreements , and , if appropriate , requests for proposals must contain the following "Buy American " provision : in accordance with section 215 of the Clean Water Act (33 U . S . C . 1251 at seq. ) and implementing EPA regulations , the contractor agrees that preference will be given to domestic construction materials by the contractor , subcontractors , materiaimen and suppliers in the performance of this subagreement. (d ) Methods of procurement to be followed— ( 1 ) Procurement by small purchase procedures. Small purchase procedures are those relatively simple and informal procurement methods for securing services , supplies , or other property that do not cost more than the simplified acquisition threshold fixed at 41 U .S . C . 403( l 1 ) ( currently set at $ 100, 000) * if small purchase procedures are used , price or rate quotations shall be obtained from an adequate number of qualified sources . (2 ) Procurement by sealed bids (formal advertising ) . Bids are publicly solicited and a firm-fixed-pace contract (lump sum or unit price) is awarded to the responsible bidder whose bid , conforming with all the material terms and conditions of the invitation for bids , is the lowest in price . The sealed bid method is the preferred method for procuring construction , if the conditions in 31 .36(d )(2 )(i) apply . ( i ) in order for sealed bidding to be feasible , the following conditions should be present: (A ) A complete , adequate , and realistic specification or purchase description is available ; ( B ) Two or more responsible bidders are willing and able to compete effectively and for the business ; and ( C ) The procurement lends itself to a firm fixed price contract and the selection of the successful bidder can be made principally on the basis of price . (ii) If sealed bids are used , the following requirements apply : littn : //ecfr. �nctacce�� _ .anv/cat /t/text/text- icia ? r.=Pnfrk.gid =hF5Pfl7ar51 r4r1Rah47 WM AP4rf4 7 / 1 Al�) nO1R Electronic Code of Federal Regulations . Page 23 of 43 (A ) The invitation for bids will be publicly advertised and bids shall be solicited from an adequate number of known suppliers , providing them sufficient time prior to the date set for opening the bids ; (B ) The invitation for bids , which will include any specifications and pertinent attachments , shall define the items or services in order for the bidder to properly respond ; (C) All bids will be publicly opened at the time and place prescribed in the invitation for bids ; (D ) A firm fixed-price contract award will be made in writing to the lowest responsive and responsible bidder. Where specified in bidding documents , factors such as discounts , transportation cost, and life cycle costs shall be considered in determining which bid is lowest. Payment discounts will only be used to determine the low bid when prior experience indicates that such discounts are usually taken advantage of; and ( E ) Any or all bids may be rejected if there is a sound documented reason . ( 3 ) Procurement by competitive proposals. The technique of competitive proposals is normally conducted with more than one source submitting an offer , and either a fixed-price or cost-reimbursement type contract is awarded . It is generally used when conditions are not appropriate for the use of sealed bids . If this method is used , the following requirements apply: (1 ) Requests for proposals will be publicized and identify all evaluation factors and their relative importance . Any response to publicized requests for proposals shall be honored to the maximum extent practical ; (it ) Proposals will be solicited from an adequate. number of qualified sources ; (iii ) Grantees and subgrantees will have a method for conducting technical evaluations of the proposals received and for selecting awardees; (iv) Awards will be made to the responsible firm whose proposal is most advantageous to the program , with price and other factors considered ; and . (v) Grantees and subgrantees may use competitive proposal procedures for quallfications-based procurement of architectural/engineering (AIE) professional services whereby competitors' qualifications are evaluated and the most qualified competitor is selected , subject to negotiation of fair and reasonable compensation . The method , where price is not used as a selection factor, can only be used in procurement of A/E professional services . It cannot be used to purchase other types of services though A/E firms are a potential source to perform the proposed effort. (4 ) Procurement by noncompetitive proposals is procurement through solicitation of a proposal from only one source , or after solicitation of a number of sources , competition is determined inadequate . (I ) Procurement by noncompetitive proposals may be used only when the award of a contract is Infeasible under small purchase procedures , sealed bids or competitive proposals and one of the following circumstances applies : (A) The item is available only from a single source ; (B ) The public exigency or emergency for the requirement will not permit a delay resulting from competitive solicitation ; (C ) The awarding agency authorizes noncompetitive proposals ; or ( D ) After solicitation of a number of sources , competition is determined inadequate . ( it) Cost analysis , i . e . , verifying the proposed cost data , the projections of the data , and the evaluation of the specific elements of costs and profits , is required . (iii ) Grantees and subgrantees may be required to submit the proposed procurement to the awarding agency for pre-award review in accordance with paragraph (g) of this section . ht#n JJPrfr menar.rPcc trC \IJl C� tJ1 �f'��'f/tPvi _ i �v `1r —�r�i RrcirF =l�F � o (� 7nn � I nA rlQml . 171. /1 Ff 1 () oAt -FA ill 417 /V10 Electronic Code of Federal Regulations : Page 24 of 43 (e) [Reserved; (f) Contract cost and price . ( 1 ) Grantees and subgrantees must perform a cost or price analysis in connection with every procurement action including contract modifications . The method and degree of analysis is dependent on the facts surrounding the particular procurement situation , but as a starting point , grantees must make independent estimates before receiving bids or proposals . A cost analysis must be performed when the offeror is required to submit the elements of his estimated cost, e .g „ under professional , consulting , and architectural engineering services contracts . A cost analysis will be necessary when adequate price competition is lacking , and for sole source procurements , including contract modifications or change orders , unless price resonableness can be established on the basis of a catalog or market price of a commercial product sold in substantial quantities to the general public or based on prices set by law or regulation . A price analysis will be used in all other instances to determine the reasonableness of the proposed contract price . (2 ) Grantees and subgrantees wilt negotiate profit as a separate element of the price for each contract in which there is no price competition and in all cases where cost analysis is performed . To establish a fair and reasonable profit , consideration will be given to the complexity of the work to be performed , the risk borne by the contractor , the contractor's investment , the amount of subcontracting , the quality of its record of past performance , and industry profit rates in the surrounding geographical area for similar work. (3 ) Costs or prices based on estimated costs for contracts under grants will be allowable only to the extent that costs incurred or cost estimates inciuded in negotiated prices are consistent with Federal cost principles (see § 31 .22) . Grantees may reference their own cost principles that comply with the applicable Federal cost principles . (4 ) The cost plus a percentage of cost and percentage of construction cost methods of contracting shall not be used . (g ) Awarding agency review. ( 1 ) Grantees and subgrantees must make available , upon request of the awarding agency , technical specifications on proposed procurements where the awarding agency believes such review is needed to ensure that the item and/or service specified is the one being proposed for purchase . This review generally will take place prior to the time the specification is incorporated into a solicitation document. However, if the grantee or subgrantee desires to have the review accomplished after a solicitation has been developed , the awarding agency may still review the specifications , with such review usually limited to the technical aspects of the proposed purchase . (2 ) Grantees and subgrantees must on request make available for awarding agency pre-award review procurement documents , such as requests for proposals or Invitations for bids , independent cost estimates , etc. when : (1) A grantee' s or subgrantee's procurement procedures or operation falls to comply with the procurement standards in this section ; or (li) The procurement is expected to exceed the simplified acquisition threshold and is to be awarded without competition or only one bid or offer is received in response to a solicitation ; or (iii ) The procurement , which is expected to exceed the simplified acquisition threshold , specifies a "brand name" product ; or ( iv ) The proposed award is more than the simplified acquisition threshold and is to be awarded to other than the apparent low bidder under a sealed bld procurement ; or (v) A proposed contract modification changes the scope of a contract or increases the contract amount by more than the simplified acquisition threshold . (3) A grantee or subgrantee will be exempt from the pre-award review in paragraph (g )(2 ) of this section if the awarding agency determines that its procurement systems comply with the standards of this section . ( i ) A grantee or subgrantee may request that its procurement system be reviewed by the awarding agency to determine whether its system meets these standards in order for its system to be certified . Generally , these reviews shall occur where there is a continuous high-dollar funding , and third-party contracts are awarded on a regular basis , http : //ecfr. at)oaccess . �y,ov/cLi/t/text/text-idx ? c=ecfr&sid=b65eO2ac51 c4d9 ,9h42h4f619eArf'4 7 /16r) om Electronic Code of Federal Regulations . Page 25 of 43 (ii ) A grantee or subgrantee may self-certify its procurement system , Such self-certification shall not limit the awarding agency's right to survey the system . Under a self-certification procedure , awarding agencies may wish to rely on written assurances from the grantee or subgrantee that it is complying with these standards . A grantee or subgrantee will cite specific procedures , regulations , standards , etc„ as being in compliance with these requirements and have its system available for review . (h ) Bonding requirements. For construction or facility improvement contracts or subcontracts exceeding the simplified acquisition threshold , the awarding agency may accept the bonding policy and requirements of the grantee or subgrantee provided the awarding agency has made a determination that the awarding agency's interest is adeouately protected . If such a determination has not been made , the minimum requirements shall be as follows : ( 1 ) A bid guarantee from each bidder equivalent to five percent of the bid price. The "bid guarantee" shall consist of a firm commitment such as a bid bond , certified check , or other negotiable instrument accompanying a bid as assurance that the bidder will , upon acceptance of his bid , execute such contractual documents as may be required within the time specified . (2 ) A performance bond on the part of the contractor for 900 percent of the contract price . A . "performance bond" is one executed in connection with a contract to secure fulfillment of all, the contractor's obligations under such contract , (3 ) A payment bond on the part of the contractor for 100 percent of the contract price . A "payment bond" is one executed in connection with a contract to assure payment as required by law of all persons supplying labor and material in the execution of the work provided for in the contract . (i ) Contract provisions. A grantee's and subgrantee' s contracts must contain provisions in paragraph ( i ) of this section . Federal agencies are permitted to require changes , remedies , changed conditions , access and records retention , suspension of work, and other clauses approved by the Office of Federal Procurement Policy. ( 1 ) Administrative , contractual , or legal remedies in instances where contractors violate or breach contract terms , and provide for such sanctions and penalties as may be appropriate . ( Contracts more than the simplified acquisition threshold ) (2 ) Termination for cause and for convenience by the grantee or subgrantee including the manner by which it will be effected and the basis for settlement . (All contracts in excess of $ 10 , 000 ) (3) Compliance with Executive Order 11246 of September 24 , 1965 ; entitled "Equal Employment Opportunity ," as amended by Executive Order 11375 of October 13 , 1967 , and as supplemented in Department of Labor regulations (41 CFR chapter 60 ) . (All construction contracts awarded in excess of $10 ,000 by grantees and their contractors or subgrantees ) (4) Compliance with the Copeland "Anti-Kickback" Act (1 B U . S . C . 874) as supplemented in Department of Labor regulations (29 GFR part 3) . (All contracts and subgrants for construction or repair) (5 ) Compliance with the Davis-Bacon Act (40 U , S . C . 276a to 276@-7) as supplemented by Department of Labor regulations (29 CFR part 5 ) . ( Construction contracts in excess of $2000 awarded by grantees and subgrantees when required by Federal grant program legislation ) (6) Compliance with Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 U . S .C . 327-330) as supplemented by Department of Labor regulations (29 CFR part 5) . ( Construction contracts awarded by grantees and subgrantees in excess of $2000 , and in excess of $2500 for other contracts which involve the employment of mechanics or laborers) ( 7) Notice of awarding agency requirements and regulations pertaining to reporting . (8) Notice of awarding agency requirements and regulations pertaining to patent rights with respect to any discovery or Invention which arises or is developed in the course of or under such contract. ( 9) Awarding agency requirements and regulations pertaining to copyrights and rights in data , ( 10 ) Access by the grantee , the subgrantee , the Federal grantor agency , the Comptroller General of the United States , or any of their duly authorized representatives to any books , documents , papers , and http : //ecfr . gpoaccess. gov/cgi/t/text/text-idx9c=cefr& sld=b65eO2ac5l c4d8ab42b4f6l9e4cf4 , . , 7/ 16/2008 Electronic Code of Federal. Regulations : Page 26 of 43 records of the contractor which are directly pertinent to that specific contract for the purpose of making audit, examination , excerpts , and transcriptions . ( II 1 ) Retention of all required records for three years after grantees or subgrantees make final payments and all other pending matters are closed . ( 12 ) Compliance with all applicable standards , orders , or requirements issued under section 306 of the Clean Air Act (42 U . S . C . 1857( h ) ) section 508 of the Clean Water Act (33 U . S . C . 1368) , Executive Order 11738 , and Environmental Protection Agency regulations (40 CFR part 15). (Contracts , subcontracts , and subgrants of amounts in excess of $ 100 ,000 ) ( 13 ) Mandatory standards and policies relating to energy efficiency which are contained in the State energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub . L . 94-163 , 89 Stat. 871 ) , (j ) Payment to consultants . ( 1 ) EPA will limit its participation in the salary rate (excluding overhead ) paid to individual consultants retained by grantees or by a grantee's contractors or subcontractors to the maximum daily rate for a GS-18 . (Grantees may , however , pay consultants more than this amount) . This limitation applies to consultation services of designated individuals with specialized skills who are paid at a daily or hourly rate . This rate does not include transportation and subsistence costs for travel performed ; grantees will pay these in accordance with their normal travel reimbursement practices . ( Pub . L . 99-591 ) . (2 ) Subagreements with firms for services which are awarded using the procurement requirements in this part are not affected by this limitation . (k ) Use of the same architect or engineer during construction. ( 1 ) If the grantee is satisfied with the qualifications and performance of the architect or engineer who provided any or all of the facilities planning or design services for a waste-water treatment works proiect and wishes to retain that firm or individual during construction of the project , it may do so without further public notice and evaluation of qualifications , provided : (i) The grantee received a facilities planning (Step 1 ) or design grant (Step 2) , and selected the architect or engineer in accordance with EPA's procurement regulations in effect when EPA awarded the grant ; or (ii ) The award official approves noncompetitive procurement under §31 . 36( d )(4) for reasons other than simply using the same individual or firm that provided facilities planning or design services for the project; or (iii ) The grantee attests that : (A ) The initial request for proposals clearly stated the possibility that the firm or individual selected could be awarded a subagreement for services during construction ; and (8 ) The firm or individual was selected for facilities planning or design services in accordance with procedures specified in this section . (C ) No employee , officer or agent of the grantee , any member of their immediate families , or their partners have financial or other interest in the firm selected for award ; and (D ) None of the grantee's officers , employees or agents solicited or accepted gratuities , favors or anything of monetary value from contractors or other parties to subagreements . (2) However, if the grantee uses the procedures in paragraph ( k)( 1 ) of this section to retain an architect or engineer , any Step 3 subagreements between the architect or engineer and the grantee must meet all of the other procurement provisions in § 31 . 36 . [53 FR 8068 and 8087 , Mar . 11 , 1988 , and amended at 53 FR 8075 , Mar. 11 , 1988 ; 60 FR 196391 19644 , Apr. 19 , 1995 ; 66 FR 3794 , Jan . 16 , 2001 ; 73 FR 15913 , Mar . 26, 2008] § 31 .37 Subgrants . httna/ecfr . nnarce�s . anv/nvi /tltexthPxt � irlxJ �. frR� c; r1 =hF, 5P(17arSl �dr# 9and71�ttfFlQoa� fa 7i1o� /7nnQ ATTACHMENT C 40 CFR Part 34 , New Restrictions on Lobbying Lor, eymg ana L111gatloIl I t_rrants ana ueoarmeni ub t�rA raoc I ul `eta s,yps http : //wwvv . eria . ciov. ocirlj recipient/lobt)v , t ,trr� owl LaSt ui)dated on Friday . uctouer 5th2ao ? .Gra s and Deba en } G w "ry; pf ar ? (h fee A r,.,r�c%�G � ou are here: EPA Home tents and Debarment Desk Too Resource Lobbying and Lttlgaton Lobbying and Litigation Lobbying ( Anti - Lobbying ) ( 40 CFR Part 34 ) Recipients of Federal grants , cooperative agreements , contracts , and loans are prohibited by 31 USC 1352, " Limitation on Use of Appropriated Funds to Influence Certain Federal Contracting and Financial Transactions , " from using Federal ( appropriated ) funds to pay any person for influencing or attempting to influence any officer or employee of an agency , a Member of Congress , an officer or employee of Congress , or an employee of a Member of Congress with respect to the award , continuation , renewal , amendment, or modification of any of these instruments , These requirements are implemented for EPA in 40 CFR Part 34 , which also describes types of activities , such as legislative liaison activities and professional and technical services , which are not subject to this prohibition . Applicants for EPA awards with total costs expected to exceed $ 100, 000 are required to certify that ( 1 ) they have not made, and will not make , such a prohibited payment, ( 2 ) they will be responsible for reporting the use of non - appropriated funds for such purposes , and ( 3 ) they will include these requirements in consortium agreements and contracts under grants that will exceed $ 100 , 000 and obtain necessary certifications from those consortium participants and contractors . The signature of the authorized organizational official on the application serves as the required certification of compliance for the applicant organization . EPA appropriated funds may not be used to pay the salary or expenses of an employee of a grantee , consortium participant, or contractor or those of an agent related to any activity designed to influence legislation or appropriations pending before Congress or any State legislature . F Civil Rights ( 40 CFR Part 7 ) The Civil Rights Act of 1964 , Title VI , requires that no person in the United States shall , on the basis of race , color , or national origin , be excluded from participation in , be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . The EPA implementing regulations are codified at 40 CFR Part 7 . Debarment ( 40 CFR Part 32 ) This action is taken by a debarring official in accordance with Federal agency regulations implementing Executive Order 12549 to exclude a person or organization from participating in transactions . Grantees may be debarred or suspended if they are found to have seriously and willfully not compiled with grant conditions or are found to have engaged in scientific misconduct . If debarred , a grantee may not receive Federal assistance funds and may not participate in covered transactions for the period covered by the debarment. • Drug - Free Workplace (40 CFR Part 32, Subpart F) The Drug - Free Workplace Act of 1988 ( Public Law 100 - 690 , Title V , Subtitle D , as amended ) requires that all organizations receiving grants from any Federal agency agree to maintain a drug -free workplace . Under this law , employees of grantees are prohibited from engaging In the unlawful manufacture, distribution , dispensing , possession , or use of a controlled substance at work . By signing the application , the authorized organizational official agrees that the grantee will provide a drug -free workplace and will comply with requirements to notify NCI in the event that an employee Is convicted of violating a criminal drug statute . Failure to comply with these requirements may be cause for debarment. EPA implementing regulations are set forth in 40 CFR Part 32 , " Government-wide Debarment and Suspension ( Non - procurement) and Government- wide Requirements for Drug - Free Workplace ( Grants ) . " Sex Discrimination ( 40 CFR Part 5 ) Section 901 of title IX of the Education Amendments of 1972 (20 USC 1681 ) , as amended , provides that no person In the United States shall , on the basis of sex, be excluded from participation in , be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance , The EPA implementing regulations are codified at 40 CFR Part S . Protcction Qf Human subjects ( 40 CFR Part 26 ) Protection of human subjects , in accordance with 40 CFR Part 26 , is required of all research activities in which human subjects are involved . A human subject is defined in 40 CFR Part 26 as " a living individual about whom an Investigator ( whether professional or student) conducting research obtains ( a ) data through intervention or interaction with the Individual , or ( b ) identifiable private information . " The regulation also extends to the use of human organs , tissues , and body fluids from individually identifiable human beings . There is additional protection for certain classes of human research involving fetuses , pregnant women , human in - vitro fertilization , and prisoners . The regulation exempts certain categories of research involving human subjects ( listed in 40 CFR Part 26 . 101 ( b ) ) which normally Involve little or no risk. http ://www . epa_ gov/ogd/TecipientAobby . htm 6/24/2008 Lobbying and Litigation Grants and Debarment US EPA Page 2 of 2 Noti6p, of Grant Award The grant award document is the official notification to the applicant that a project has been funded . Each grant award Is authorized by statute , For example, In the sample grant award in this manual the authorizing legislation is Clean AIr Act, Section 103 . Each award also cites particular regulations that authorize its issuance . The final sources of requirements imposed on projects supported by Federal grants are the specific terms and conditions- that are attached to an individual grant and incorporated into the formal award document. These terms and conditions may include the basic purpose of the award , policy statements , and OMB Circulars . These latter materials may be Incorporated by reference . By accepting the award every grant recipient agrees to comply with everything incorporated by reference on the award document , Grantee Organization Responsibility In applying for grant support, the grantee organization agrees to administer any awarded grant in accordance with the regulations and current policies that govern the assistance programs of the EPA . Acceptance of an award imposes upon the grantee organization and the project manager responsibility for conducting the project and using grant funds prudently and in accordance with cost principles , for the purposes set forth in the approved application . The grantee assumes responsibility for the fiscal and administrative management of the project and fulfillment of any special terms or conditions of award that may be prescribed for conducting the project . As noted under the previous section on " Notice of Grant Award , " the grantee indicates acceptance of the general and special provisions of an award by signing and returning the award document. The grantee organization Is not required to guarantee the success of the project, nor are penalties generally imposed for lack of success in attaining environmental outcomes . However, in certain situations , EPA may take action to resolve problems or weaknesses that arise during the course of the project ( see " Recipients Roles and Responsibilities during Post Award" section for further information ) . Legal Implication of Application The signature of an authorized organizational official on the application indicates the organization ' s intent to comply with the laws , regulations , and policies to which a grant is subject , Including applicable public policy requirements . That official is also attesting to the fact that the information contained in the application is true and complete , and in conformance with Federal requirements and the organization ' s own policies and requirements . Applicants for and recipients of EPA grant funds , whether such funds are received directly from EPA , indirectly under a contract agreement , or as student assistance under a training grant, are responsible for and must adhere to all applicable Federal statutes , regulations , and policies , including income tax regulations . Questions concerning the applicability of Income tax regulations to grant funds should be directed to the Internal Revenue Service ( IRS ) . The applicant is also expected to be in compliance with applicable State and local laws and ordinances , Previous Pa a Table of Contents Next Page Cross Cutting Public Policies �— Table Federal Grant and Cooperative _grerSg Act of 1977 http ; //www . epa. aov/og. d/recipient/lobby .htm 6/24/2008 Environmental Protection Agency Pt. 34 a . Assure that small audit firms and audit A7rA=v1ENT—CIRCULAR A- 128 firms owned and controlled by socially and economically disadvantaged individuals are Definition ofMiijor Program as Provided In used to the fullest extent practicable . Pub. L, 96-502 b . on o . portunilties Inav available and f a angeintime. Major Federal Assistance Program, for State frames for the audit so as to encourage and and local governments having Federal assist- facilitate participation by small audit firms ante expenditures between $ 100,000 and and audit firms owned and controlled by so• 5100 ,000,000 , means any program for which cially and economically disadvantaged indi • Federal expenditures during the applicable viduals . year exceed the larger of $308 ,000. or 3 per- t . Consider in the contract process whether cent of such total expenditures , firms competing for larger audits intend to Where total expenditures of Federal assist subcontract with small audit firms and audit ante exceed SI00 ,000. 000, the following cri- firms owned and controlled by socially and teria apply: economically disadvantaged individuals . Seal ezpanvtmas of Fadaral lmanuai Mair Faderel as- d. Encourage contracting with small audit assistance for ail firms or audit firms owned and controlled by cro0rams minae prooram" socially and economically disadvantaged in. More than But iaas man that syceWss dividuals which have traditionally audited government programs and, in such cases $ 100 million ..-..... ., 51 bitlior, ss minion, where this is not possible , assure that these 51 billion ....._._.... . l 52 billion ............. 54 million. firms are given consideration for audit sub- S2 billion .'."""""" $s bulb" $7 million . ns contracting opportunities. $ 4 4 $ billion . ... ........... 54 billion ,, ,,,,,,,,.,, I 1million, 5billion .......... ..... S5 billion ....,.._.... 133 million. e . Encourage contracting with consortiums $ 5 billion . .............. . Se ballon ...,.,.,..... Sfi mluion. of small audit firms as described in para- 58 billion ............... ! , S7 billion S19 million. graph (a) above when a contract is too targe Over 57 billion ...... ............ ................. 1520 mluian. for an individual small audit firm or audit firm owned and controlled by socially and economically disadvantaged individuals . [51 FR 6353 . Feb . 21 , 1986 . Redesignated at 53 f. Use the services and assistance , as appro- FR 9076 , Mar. 11 , 19881 priate , of such organizations as the Small Bustiness Administration in the solicitation PART 34-NEW RESTRICTIONS ON and utilization of small audit firms or audit LOBBYING firms owned and controlled by socially and economically disadvantaged individuals . 20 , Reporting. Each Federal agency will re- Subpart A—Gianaral port to the Director of OMB on or before March 1 , 1997 , and annually thereafter on the Sec. effectiveness of State and local governments 34 . 100 Conditions on use of funds , in carrying out the provisions of this Ciro 34. 105 Definitions . cular . The report must identify each State or 34 , 1f0 Certification and disclosure , local government or Indian tribe that, in the opinion of the agency, is failing to comply Subpart 6—ACtivlties by Own Employees with the Circular. 21 . Regulations Each Federal agency shall 34'200 Agency and legislative liaison. include the provisions of this Circular in its 34'205 Professional and technical services , regulations implementing the Single Audit 34 '210 Reporting . Act . 22 . Effective dare. This Circular is effective Subpart C—Activities by Other Than Own Spon publication and shall apply to fiscal Employees years of State and local governments that begin after December 31 , 1984 . Earlier imple. 344300 Professional and technical services, mentation is encouraged , However , until it is implemented , the audit provisions of Attach Subpart P--Penalties and Enforcement ment F to Circular A- 102 shall continue to be 34 .400 Penalties . observed, 34 , 405 Penalty procedures . 23 . lnouirles, All questions or inquiries 34.410 Enforcement. should be addressed to Financial Manage- ment Division, Office of Management and Subpart E--EXempfions Budget, telephone number 202/39 -3993 . 24. Sunset reviert, date. This Circular shall 34. 500 Secretary of Defense. have an independent policy review to ascer. tain its effectiveness three years from the date of issuance. Subpart F--Agency Reports DAVID A. SToCxMAN , 34, 600 Semiannual compilation. Director. 34 . 605 Inspector General report . 409 34, 100 40 CFR Ch. 1 (7- 1 �07 Edition) APPENPDtx A TO PART 34—CERTIFICATION RE- providing for the United States to in- GARDING LOBBYING sure or guarantee a loan shall file with APPENDIX B TO PART 34—DIscLosuRE FORM that agency a statement , set forth in i 0 REPORT LOBBYING appendix A , whether that person has AUTHORITY : Section 31.9: Pub , L . 101 - 121 (31 ' made or has agreed to make any pay U .S .C . 1354 ; 33 U . S . C. 1251 et seq, : 42 U . S . C. meet to influence or attempt to influ - 7401 et seq. ; 42 U. S .C . 6901 et seq. ; 42 U . S .C . 300f ence an officer or employee of any et seq. ; 7 U . S .C . 136 et seq. ; 15 U . S. C , 2601 er agency , a Member of Congress , an offi - seq. : 42 U .S . C. 9601 et seq. ; 20 I . S .C . 4011 et seq. ; 33 U .S . C . 1401 etseq , cer or employee of Congress , or an em * ployee of a Member of Congress in con- SouRcP: 55 FR 6737 . 6753 , Feb . 26 , 1990 , un- vection with that loan insurance or less otherwise noted, guarantee . CRoss- REFERENCE: See also Office of Man- (e) Each person who requests or re- agement and Budget notice published at 54 ceives from an agency a commitment FR 52306 , December 20 , 1939 . providing for the United States to in- SUb art A--Genera! sure or guarantee a loan shall file with P that agency a disclosure form, set forth 34.100 Conditions on use of funds. in appendix S , if that person has made or has agreed to make any payment to (a) No appropriated funds may be ex- influence or attempt to influence an of- pended by the recipient of a Federal (icer or employee of any agency, a contract , grant , loan , or cooperative. Member of Congress, an officer or em- agreement to pay any person for influ- ployee of Congress , or an employee of a encing or attempting to influence an Member of Congress in connection with officer or employee of any agency , a that loan insurance or guarantee . Member of Congress , an officer or em- ployee of Congress , or an employee of a § 84.105 Definitions. Member of Congress in connection with For purposes of this part : any of the following covered Federal actions : the awarding of any Federal 552 (f) , includes as Fdefined ederalexecutive dew contract , the making of any Federal partments and. agencies as well as inde- grant , the making of any Federal loan, pendent regulatory commissions and the entering into of any cooperative Government corporations , as defined in agreement , and the extension , continu- 31 U . S . C. 9101 (1 ) . ation, renewal, amendment, or modi- (b) Covered Federal action means any fication of any Federal contract , grant, of the following Federal actions : loan , or cooperative agreement. (b) Each person who requests or re- ( i ) The awarding of any Federal con - ceives from an agency a Federal con- tract; (2) The making of any Federal grant ; tract , grant , loan, or cooperative (3) The making of any Federal loan; agreement shall file with that agency a certification, set forth in appendix A, (4) The entering into of any coopera- that the person has not made , and will tive agreement ; and , not make , any payment prohibited by (5) The extension , continuation , re- paragraph (a) of this section . newal , amendment , or modification of (c) Each person who requests or re- any Federal contract, grant, loan, or ceives from an agency a Federal con- cooperative agreement. tract , grant , loan , or a cooperative Covered Federal action does not in- agreement shall file with that agency a elude receiving from an agency a corn- disclosure form , set forth in appendix mitment providing for the United S , if such person has made or has States to insure or guarantee a loan . agreed to make any payment using Loan guarantees and loan insurance nonappropriated funds (to include prof- are addressed independently within its from any covered Federal action) , this part , which would be prohibited under para- (c) Federal contract means an - acquisi- graph (a) of this section i€ paid for with tion contract awarded by an agency , appropriated funds . including those subject to the Federal (d) Each person who requests or re- Acquisition Regulation (FAR) , and any ceives from an agency a commitment other acquisition contract for real or 410 Environmental Protection Agency § 34. 05 personal property or services not sub- (2) A member of the uniformed serv- ject to the FAR , ices as defined in section 101 (3) , title 37 , (d) Federal cooperative agreement U . S . Code : means a cooperative agreement en- (3) A special Government employee tered into by an agency . as defined in section 202 , title 18 . U . S . (e) Federal grant means an award of Code ; and , financial assistance in the form of (4) An individual who is a member of money , or property in lieu of money , a Federal advisory committee , as de by the Federal Government or a direct fined by the Federal Advisory Com - appropriation made by law to any per - rnittee Act , title 51 U . S . Code appendix son . The term does not include tech - � ' nical assistance which provides sere- (i) Person means an individual , car- ices instead of money , or other assist- Potation, company , association , au - ance in the form of revenue sharing• thority , firm , partnership , society , State , and local government , regard * loans , loan guarantees , loan insurance , interest subsidies , insurance , or direct less of whether such entity is operated Ufor profit or not for profit. This term United States cash assistance to an in- excludes an Indian tribe , tribal organi - dividual . zation, or any other Indian organiza- Y (f) Federal loan means a loan made b tion with respect to expenditures spe- an agency . The term does not include cifically permitted by other Federal loan guarantee or loan insurance . law . (gj Indian tribe and tribal organization (m) Reasonable compensation means , have the meaning provided in section 4 with respect to a regularly employed of the Indian Self-Determination and officer or employee of any person , corn - Education Assistance Act ( 25 U . S . C . pensation that is consistent with the 4508) . Alaskan Natives are included normal compensation for such officer under the definitions of Indian tribes in or employee for work that is not fur- that Act . nished to , not funded by , or not fur - (h) Influencing or attempting to influ- niched in cooperation with the Federal ence means making , with the intent to Government . influence , any communication to or ap- (n) Reasonable payment means . with pearance before an officer or employee respect to professional and other tech- or any agency , a Member of Congress , nical services , a payment in an amount an officer or employee of Congress , or that is consistent with the amount nor- an employee of a Member of Congress rnally paid for such services in the pri - in connection with any covered Federal vate sector . action. (o) Recipient includes all contractors , (i) Loan guarantee and loan insurance subcontractors at any tier , and sub- means an agency' s guarantee or insur- grantees at any tier of the recipient of ance of a loan made by a person. funds received in connection with a (j) Local government means a unit of Federal. contract , grant , loan, or coop- government in a State and, if char- erative agreement. The term excludes gored, established , or otherwise rehag- an Indian tribe , tribal organization , or rered by a State for the performance of any other Indian organization with re- a governmental duty, including a local Tnitspet to expenditures l law specifically per- public authority , a special district, an mitred eg other Federal law . intrastate district . a council of overn- (p) Regularly employed means , with g respect to an officer or employee of a ments , a sponsor group representative person requesting or receiving a Fed - organization , and any other instrumen- eral contract , grant, loan , or c000era- tality of a local government , tive agreement or a commitment pro- (k) Officer or employee of an agency in- viding for the United States to insure eludes the following individuals who or guarantee a loan, an officer or em - are employed by an agency : ployee who is employed by such person (1 ) An individual who is appointed to for at least 130 working days within a position in the Government under one year immediately preceding the. title 5 , U . S , Code , including a position date of the submission that initiates under a temporary appointment; agency consideration of such person for 411 § 34. 110 40 CFR Ch . 1 (7-1 -07 EdRion) receipt of such contract , grant , loan, (1) A cumulative increase of $25 ,000 or cooperative agreement , loan insurance more in the amount paid or expected to commitment , or loan guarantee com- be paid for influencing or attempting mitment. An officer or employee who is to influence a covered Federal action ; employed by such person for less than or 130 working days within one year im- (2) A change in the person (s) or indi- mediateiy preceding the date of the viduai (s) influencing or attempting to submission that initiates agency con- influence a covered Federal action ; or , sideration of such person shall be con- (3) A change in the officer (s) , em- sidered to be regularly employed as ployee (s) , or Member (s) contacted to soon as he or she is employed by such influence or attempt to influence a person for 130 working days , covered Federal action. . (q) State means a State of the United or re� States , the District of Columbia , the (d) Any person who requests to n n i Commonwealth of Puerto Rica , a terri - pelves from a person referred t paragraphs (a) or (b) of this section : tory or possession of the United States, an agency or instrumentality of a (1) A subcontract exceeding $ 100 ,000 State , and a multi - State , regional , or at any tier under a Federal contract; interstate entity having governmental (2) A subgrant , contract , or sub- duties and powers . contract exceeding $ 100, 000 at any tier under a Federal grant; § 34.110 Certification and disclosure. (3) A contract or subcontract exceed - (a) Each person shall file a certifi - ing $ 100 ,000 at any tier under a Federal cation, and a disclosure form, if re- loan exceeding $150 , 000; or , quired, with each submission that ini- (4) A contract or subcontract exceed - tiates agency consideration of such ing $ 100, 000 at any tier under a Federal person for: cooperative agreement, (1 ) Award of a Federal contract , Shall file a certification, and a disclo- grant, or cooperative agreement ex - sure form , if required, to the next tier ceeding $ 100, 000; or above . (2) An award of a Federal loan or a (e) All disclosure forms , but not cer- commitment providing for the United tifications , shall be forwarded from States to insure or guarantee a loan tier to tier until received by the person exceeding $ 150, 000 . referred to in paragraphs (a) or (b) of (b) Each person shall file a certifi - this section. That person shall forward cation, and a disclosure form , if re- all disclosure forms to the agency , quired, upon receipt by such person of; (f) Any certification or disclosure ( 1) A Federal contract, grant, or co- form filed under paragraph (e) of this operative agreement exceeding $ 100.000 ; section shall be treated as a material or representation of fact upon which all (2) A Federal loan or a commitment receiving tiers shall rely. All liability providing for the United States to in - arising from an erroneous representa- sure or guarantee a loan exceeding tion shall be borne solely by the tier $ 150 , 000 , filing that representation and shall not Unless such person previously filed a be shared by any tier to which the er- certification , and a disclosure form, if roneous representation is forwarded, required , under paragraph (a) of this Submitting an erroneous certification section , or disclosure constitutes a failure to (c) Each person shall file a disclosure file the required certification or disclo- form at the end of each calendar quar- sure , respectively , If a person fails to ter in which there occurs any event file a required certification or disclo- that requires disclosure or that mater]- sure , the United States may pursue all ally affects the accuracy of the infor - available remedies , including those au - mation contained in any disclosure thorized by section 1352 , title 31 , U . S . form previously filed by such person Code , under paragraphs (a) or (b) of this sec- (g) For awards and commitments in tion. An event that materially affects process prior to December Z3 , 1989 , but the accuracy of the information re- not made ' before that date , certifi- ported includes : cations shall be required at award or 412 Environmental Protection Agency § 3420$ commitment , covering activities oc - sion about initiation of a covered Fed . curring between: December 23 , 1989 , and eral action. ; the date of award or commitment. (2) Technical discussions regarding However . for awards and commitments the preparation of an unsolicited pro- in process prior to the December 23 , poral prior to its official submission; 1989 effective date of' these provisions , and, but not made before December 23 . 1989 , (3) Capability presentations by per- disclosure forms shall not be required sons seeking awards from an agency at time of award or commitment but pursuant to the provisions of the SmaII shall be filed within 30 days . Business Act , as amended by Public (h) No reporting is required for an ac - Law 95 -507 and other subsequent tivity paid for with appropriated funds amendments . if that activity is allowable under ei • (e) Only those activities expressly au - ther subpart S or C . thorized by this section are allowable under this section. . Subpart S3 Activities by Own 34.205 Professional and technical Empioyees services, § 34.200 Agency and legislative liaison. (a) The prohibition on the use of ap- (a) The prohibition on the use of ap- propriated funds , in § 34 . 100 (a) , does propriated funds , in § 34 . 100 (a) , does not apply in the case of a payment of granot apply in the case of a payment of reasonable compensation made to an reasonable compensation made n an officer or employee of a person request - officer or employee of a person request - ggra or receiving a Federal contract , ing or receiving a Federal contract , nt , loan , or cooperative agreement grant , ]can , or cooperative agreement or an extension , continuation, renewal , if the payment is for agency and legis- amendment , or modification of a Fed - Iative liaison activities not directly re- eral contract, grant , loan, or c000era - lated ta covered Federal action . tive agreement if payment is for pro- (b) For purposes of paragraph (a) of fissional in technical services rendered directly in the preparation, submis - this section , providing any information sion, or negotiation of any bid, pro- specifically requested by an agency or posal, or application for that Federal Congress is allowable at any time , contract , grant , loan , or cooperative (c) For purposes of paragraph (a) of agreement or for meeting requirements this section, the following agency and imposed by or pursuant to law as a legislative liaison activities are allow - condition for receiving that Federal able at any time only where they are contract, grant , loan , or cooperative not related to a specific solicitation for agreement . any covered Federal action: (b) For purposes of paragraph (a) of ( 1 ) Discussing with an agency (in• this section , " professional and tech - cluding individual demonstrations) the nical services " shall be limited to ad - qualities and characteristics of the per- vice and analysis directly applying any son ' s products or services , conditions professional or technical discipline, or terms of sale , and service capabili - For example , drafting of a legal docu- ties ; and , rnent accompanying a bid or proposal (2) Technical discussions and other by a lawyer is allowable , Similarly , activities regarding the application or technical advice provided by an engi - adaptation of the person ' s products or neer on the performance or operational services for an agency' s use . capability of a piece of equipment ren - (d) For purposes of paragraph ( a) of dered directly in the negotiation of a this section, the following agencies and contract is allowable . However , corn- legislative liaison activities are allow- munications with the intent to influ - able only where they are prior to for• ence made by a professional (such as a mal solicitation of any covered Federal licensed lawyer) or a technical person action: (such as a licensed accountant) are not ( 1 ) Providing any information not allowable under this section unless specifically requested but necessary for they provide advice and analysis di - an agency to make an informed deal - rectly applying their professional or 413 § 34.210 40 CFR Ch , 1 (7-1 -07 Edition) technical expertise and unless the ad- meeting requirements imposed by or vice or analysis is rendered directl-v pursuant to law as a condition for re- and solely in the preparation , submis - ceiving that Federal contract , grant, sion or negotiation of a covered Fed- loan , or cooperative agreement , eral action . Thus , for example . commu - (b) The reporting requirements in nications with the intent to influence § 34 , 110 (a) and (b) regarding filing a dis - made by a lawyer that do not provide closure form by each person , if re- legal. advice or analysis directly and quired, shall not apply with respect to solely related to the legal aspects of professional or technical services ren - his or her client' s proposal , but gen- dered directly in the preparation , sub- erally advocate one proposal over an - mission , or negotiation of any commit - other are not allowable under this sec - tion because the lawyer is not pro- rnent providing for the united States vi.ding professional legal services . to insure or guarantee a loan. Similarly , communications with the (c) For purposes of paragraph (a) of intent to influence made by an engi - this section , " professional and tech- neer providing an engineering analysis nical services " shall be limited to ad - prior to the preparation or submission vice and analysis directly applying any of a bid or proposal are not allowable professional or technical discipline. under this section since the engineer is For example , drafting or a legal docu- providing technical services but not di - ment accompanying a bid or proposal rectly in the preparation , submission by a lawyer is allowable . Similarly , or negotiation of a covered Federal ac- technical advice provided by an engi - tion, neer on the performance or operational (c) Requirements imposed by or pur- capability of a piece of equipment ren - suant to law as a condition for receiv- dered directly in the negotiation of a ing a covered Federal award include contract is allowable. However , com - those required by law or regulation , or munications with the intent to influ - reasonably expected to be required by ence made by a professional (such as a law or regulation, and any other re licensed lawyer) or a technical person quirements in the actual award docu- (such as a licensed accountant) are not menu , allowable under this section unless (d) Only those services expressly au- they provide advice and analysis di- thorized by this section are allowable rectly applying their professional or under this section . technical expertise and unless the ad - § 34.210 Reporting. vice or analysis is rendered directly No reporting is required with respect and solely in the preparation , submis- to payments of reasonable compensa - sion or negotiation of a covered Fed - tion made to regularly employed offi - eras action. . Thus , for example , commu - cers or employees of a person . nications with the intent to influence made by a lawyer that do not provide Subpart C—Activities by Other legal advice or analysis directly and Than Own Employees solely related to the legal aspects of his or her client ' s proposal, but aen- § 34.300 Professional and technical erally advocate one proposal over van- services. other are not allowable under this sec- (a) The prohibition on the use of ap- tion because the lawyer is not pro- propriated funds , in § 34. 1. 00 (a) , does viding professional legal services , not apply in the case of any reasonable Similariy , communications with the payment to a person , other than an of- intent to influence made by an engi - ficer or employee of a person request- neer providing an • engineering analysis ing or receiving a covered Federal ac- prior to the preparation or submission tion , if the payment is for professional of a bid or proposal are not allowable or technical services rendered directly under this section since the engineer is in the preparation, submission , or new providing technical services but not di - gotiation of any bid , proposal , or appli - rectly in the preparation, submission cation for that Federal contract , grant, or negotiation of a covered Federal ac- loan , or cooperative agreement or for tion. 414 Environmental Protection Agency § 34.600 (d) Requirements imposed by or Pur- gravating circumstances . Second and suant to law as a condition for receiv- subsequent offenses by persons shall be ing a covered Federal award include subject to an appropriate civil penalty those required by law or regulation. , or between 510 , 000 and $ 100 . 000 , as deter - reasonably expected to be required by mined by the agency head or his or her law or regulation, and any othe,- re- designee . quirements in the actual award docu • (f) An imposition of a civil penalty ments . under this section does not prevent. the (e) Persons other than officers or em - United States from seeking any other ployees of a person requesting or re- remedy that may apply to the same ceiving a covered Federal action in- conduct that is the basis for the impo- clude consultants and trade associa- sition of such civil penalty . tions . (f) Only those services expressly au - 34 .405 Penalty procedures, thorized by this section are allowable Agencies shall impose under this section g Pose and collect civil penalties pursuant to the prov) - Subpart D—Penatfies and sions of the Program Fraud and Civil Enforcement Remedies .Act , 31. U . S . C . 3803 (except subsection (c) ) , 3804 , 3805 , 3806 , 3807 , 634.400 Penalties. 3808 , and 3812 , insofar as these provi - sions are not inconsistent with the re- (a) Any person who makes an expend - quiremenrs herein , iture prohibited herein shall be subject to a civil penalty of not less than 34,410 Enforcement. $ 10 , 000 and not more than $ 100 ,000 for The head of each agency shall take each such expenditure . g (b) Any person who fails to file or such actions as are necessary to ensure amend the disclosure form (see appen - that the provisions herein are vigor- dix $) to be filed or amended if re - ously implemented and enforced in quired herein , shall be subject to a civil that agency . penalty of not less than, $ 10 , 000 and not more than 31. 00 ,000 for each such fail - Subpart E- Exempfions ure . (c) A filing or amended filing on or f 34.500 Secretary of Defense. after the date on which an administra- (a) The Secretary of Defense may ex- tive action for the imposition of a civil. empt , on a case-by- case basis , a cov- penalty is commenced does not prevent ered Federal action from the prohibi- the imposition of such civil penalty for tion whenever the Secretary deter- a failure occurring before that date . An mines , in writing , that such an exemp- administrative action is commenced tion is in the national interest . The with respect to a failure when an inves- Secretary shall transmit a copy of each tigating official determines in writing such written exemption to Congress to commence an investigation of an al- immediately after making such a de - legation of such failure , termination. (d ) In determining whether to impose (b) The Department of Defense may a civil penalty , and the amount of any issue supplemental regulations to im- such penalty , by reason of a violation plement paragraph (a) of this section , by any person , the agency shall con- sider the nature , circumstances , ex- tent , and gravity of the violation , the Subpart F—Agency Reports effect on the ability of such person to # 34.800 Semiannual compilation. continue in business . any prior viola - tions by such person, the degree of cul - (a) The head of each agency shall col - pability of such person , the ability of lett and compile the disclosure reports the person to pay the penalty , and such ( see appendix B) and , on May 31 and other matters as may be appropriate . November 30 of each year , submit to (e) First offenders under paragraphs the Secretary of the Senate and the (a) or (b) of this section shall be subject Clerk of the House of Representatives a to a civil penalty of $ 10,000 , absent ag- report containing a compilation of the 415 § 34.605 4D CFR Ch. 1 (7-- 1 --07 Edition) information contained in the disclo- (h) Agencies shall keep the originals sure reports received during the six- of all disclosure reports in the official month period ending on March 31 or files of the agency . September 30 , respectively , of that year , § 84.605 Impeetor General report, (b) The report, including the com - (a) The Inspector General , or other pilation , shall be available for public official, as specified in paragraph (b) of inspection 30 days after receipt of the this section , of each agency shall pre- report by the Secretary and the Clerk. pare and submit to Congress each year, (c) Information that involves Intel - commencing with submission of the ligence matters shall be reported only President ' s Budget in 1991 , an evalua - to the Select Committee on Intel - tion of the compliance of that agency ligence of the Senate , the Permanent with, and the effectiveness of, the re. Select Committee an Intelligence of quir. ements herein , The evaluation may the House of Representatives , and the include any recommended changes that Committees on Appropriations of the may be necessary to strengthen or im- Senate and the House of Representa- prove the requirements. tives in accordance with procedures (b) In the case of an agency that does agreed to by such committees . Such in - not have an Inspector General , the formation shall not be available for agency official comparable to an In - public inspection , spector General shall prepare and sub- (d) Information that is classified mit the annual report , or , if there is no under Executive Order IZ356 or any suc- such comparable official , the head of cessor order shall be reported only to the agency shall prepare and submit the Committee on Foreign Relations of the annual report . the Senate and the Committee on For- (c) The annual report shall be sub- eign Affairs of the House of Represent - mitted at the same time the agency atives or the Committees on Armed Submits its annual budget justifica- Services of the Senate and the House of tions to Congress , Representatives (whichever such com- mittees have jurisdiction of matters {d) The annual report shall include involving such information) and to the the following : All alleged violations re- Committees on Appropriations of the lating to the agency' s covered Federal Senate and the House of Representa• actions during the year covered by the report , the actions taken by the head tives in accordance with procedures agreed to by such committees . Such in - of the agency in the year covered by formation shall not be available for the report with respect to those alleged public inspection. violations and alleged violations in (e) The first semi-annual compilation previous years , and the amounts of shall be submitted on May 316 1990 , and civil penalties imposed the agency shall contain a compilation of the dis - in the year covered by thee report, closure reports received from Decem- APPENDIX A TO PART 34—CERTIFICATION ber 23 , 1989 to March 31 , 1990 . REGARDING LOBBYING (f) Major agencies , designated by the Office of Management and Budget Certification for Contracts, Grants, Loans, and (OMB) , are required to provide ma - Cooperative Agreements chine-readable compilations to the The undersigned certifies , to the best of his Secretary of the Senate and the Clerk or her knowledge and belief, that: of the House of Representatives no (1 ) No Federal appropriated funds have later than with the compilations due been paid or will be paid , by or on behalf of on May 31 , 1991 . OMB shall provide de- the undersigned, to any person for influ- tailed specifications in a memorandum encing or attempting to influence an officer to these agencies . or employee of an agency, a Member of Con- (g) Non-major agencies are requested fess , an officer or employee of Congress , or an employee of a Member of Congress in con to provide machine-readable compila- nection with the awarding of any Federal tions to the Secretary of the Senate contract, the making of any Federal grant, and the Clerk of the House of Rep- the making of any Federal loan, the entering resentatives , into of any cooperative agreement, and the 416 Environmental Protection Agency NO 34, App. A extension , continuation, renewal , amend- U .S . Code. Any person who fails to file the ment , or modification of anv Federal con- required certification shall be subject to a tract, grant , loan , or cooperative agreement , civil penalty of not less than 510, 000 and not (2) If any funds other than Federal appro• more than 5100,000 for each such failure . priated funds have been paid or will be paid to any person for influencing or attempting Statement for Loan Guaranreas and Loan to influence an officer or employee of any Insurance agency , a Member of Congress, an officer or employee of Congress. or an employee of a The undersigned states , to the best of his Member of Congress in connection with this or her knowledge and belief, that: Federal contract, grant, loan , or cooperative If any funds have been paid or will be paid agreement, the undersigned shall complete to any person for influencing or attempting and submit Standard Form- LLL , "Disclosure to influence an officer or employee of any Form to Report Lobbying , " in accordance agency , a Member of Congress , an afficer or with its instructions. employee of Congress , or an employee of a (3) The undersigned shall require that the Member of Congress in connection with this language of this certification be included in commitment providing for the United States the award documents for all subawards at all to insure or guarantee a loan, the under- tiers (including subcontracts , subgrants , and signed shall complete and submit Standard contracts under grants , loans, and coopera- Form•LLL , " Disclosure Form to Reoort Lob- tive agreements) and that all subrecipients bying, " in accordance with its instructions . shall certify and disclose accordingly. Submission of this statement is a pre- This certification is a material represents- requisite for making or entering into this tion of fact upon which reliance was planed transaction imposed by section 1352 . title 31 , when this transaction was made or entered 1J . S . Code. Any person who fails to file the into. Submission of this certification is a required statement shall be subject to a civil prerequisite for making or entering into this penalty of not less than Y10 , 000 and not more transaction imposed by section 1352 , title 311 than 5100 ,000 for each such failure . 417 ATTACHMENT D Standard Form -LLL , "Disclosure of Lobbying Activities" n Pt, 34, App. B 40 CFR Ch . 1 (7- 1 -07 Edition) APPENDIX B TO FART 34- DISCLOSURE FORM TO REPORT LOBBYINC DISCLOSURE OF LOBBYING ACTIVMES Aq,owd by DMB maaaosc Complete this foam to discinse lobbying activities purwanr to St U .S.C, 1352 (See reverse for public burden disclosure.) c Type of Federal Aeliom R. Status of Federal Action 3. Ike"" Typr. ❑ a, contract a. bhUoffarlapplication i 1 a, initial (ping b, grant 17 b. Initial sword LJ b. material change co cooperative agreement d, !i0an c. pottraward Fax Material Change Only: . e . Ian guarantee year quarter f, loan imutance date of last repon A. Name sad Address of geportitg Enthy: S if Reporting Entity M No. d k Subanartim Enter Mune ❑ Prime ❑ Subawardee mrd Address of Prime: Tier , if known: cernilreosio"All District, it known: C sal Divirkil d known: C. Fedead DepaNmunMgency: T. Federd Program NoMWACreseriptiew CFDA Number, it appil AbW a. federal Action Number, if brown: !. Award Amount, if known: f te. a. Name and Address of lobbying Enlity b. Mdivialuak Performiea Serrkes (mdudng address it (if mdnvidW last name, fist name, Mil: different from Nb. 102T !fast name, (int name, Me: (AhAeft CVVNMWhen tt. AmouM of Payftwat (CMckall that apply): is. Tyke d Payment (check All that appfyl: 1 ❑ actual ❑ planned ❑ a. retainer C b, onetime fee 12. Faint of Pay ovel (check all Out apply): ❑ c. commission O a. cash ❑ d. contingent fee ❑ b. unkind; specify: nature, ❑ e. deferred O f, other, specify: value U. trier Description of Services Performed or to be Periamsed And Dre(si of Senicc, including; el icer(U, amployen(s), or Met riser s) covidoo" it Payment Mdicated in hem 11; U aasvt is, Cordal talinet Sh.r(d SF4LL•A attached: ❑ yes O No tt. Ydranrlsa wwwnd la.srn ar Iw a srunl.r w aro tl V.s.c raw alt.taa Mown MMelarF as✓rriwhrawwr wwrwnumn r 1st rPw: MM sk o w rend N We twr rww wa.r sl.a v.nrWtan ver row w waver ws. tin:. aar..w. h awwr awa,wr w pain( Nantc tl LLLC. 1151. on Ydwa Mr W awrwd W Wr cmvw wad rwrMr rod r# W .*aero W ver awwaw.. :vrr awn, M try 1. Title: for tiro nand alwW.aa Wn W weww W a e.a rw,Mr M aro tw w.w aW.maw ,w ww. vw rvsor .r. a.raWaa.. TeNphoae No: Date; ' k LU ci,yfNdi` ),yI' +lf ,, i 3 "m><'c t r' , lC aaa,wirad Iw t.ra a.wedaotes {1 r.Nl N:y f F wn . 418 Environmental Protection Agency P • 34r APP• i3 INSTRUCTIONS FOR COMPLETION OF SF•LI4 DISCLOSURE OF LORRVING ACTIVITIES This disclosure form shall be completed by the reporting entity, whether subawardee or prime Federal recipient, at the initiation or receipt of a covered Federal action, or a material lunge to a previous filing, pursuant to title 31 U.S.C. section IIS2. The filing of a fam is required for each payment or apvement to rake payment to any lobbying entity for infiuendng or atterepting to innuence an officer or empk"t of a agency, a Member of Congress. an officer or employee of Cnrtgreas, or an atwlov m of a Member o1 Congress M connection with a covered Federal action. Use the SF-LLL, eontMrwtion Sheet far ,additional bnfornst ion If the space on the form k Inadequate. Complete all Items that apply far both he Initial filing and material lunge report. Rehr to the implementing guidance published by the Office of Management and Rudget for additional Information, 11 Identify the type of covered Federal action for which lobbying activity Is and/or has been secured to influence the outcome of a covered Federal anion. 2, identify the status of the covered Federal action, 1. Identify the appropriate du lfiration of this report. If tics is a foliowup report caused by a materia) change to the information previously reported, enter the year and quarter in which the dhartge occurred. Enter Ike date of the tats previously tubmhted report by this reporting entity for this covered Federal action. 4. Faster the full name, address, city, state and zip code of the reportinentity. include Congressdanal District, If known, cheek the appropriate clasalfication of the reporting entity that I signates if it is, or expects to be, a prime or subaward revlppi�ert. Identify the tier of the subawardee, e.g., the First subawardee of the prime is the 1st tier, Subsevuds inckde but are not limited to subconuacts, subgants and contact awards under grants. S. If the organization filing the report In hem 4 checks "Subawerdee", then enter the full name, address, drya state and sip code of the prime Federal recipient. Include Congressional District, If known. 6. Enter the name of the Federal agency making the award or loan commitment. Include at least ons organizational fetal below agency name, " known. For example, Department of Transportation, United States Goad Guard. - 7. Enter the Federal program name or description for the covered Federal action (item 1). If known, enter the full Catalog of Fedeat Domestic Assistance ICFDM number for grsrMt, cooperative agreements, loans, and ban tommitments. S. Enter the most spproptim Federal identifying number avaliable for the Federal action identified in hem 1- (e.g., grant, orifosr,award number, therapplicaliaruproposltation lot al (control numbberber rnsigned by thatir erent Federal agency), contract, nclude prefixes, e.g., "RFP•DE4"01 ," 9. For it covered Federal action what there has been an award or ban commitment by the Federal agency, enter the Federal amount of the swardlioan commitment for the prime entity Identified In item 4 or S. 10. (A) Enter the gull none, address, city, stale and tip code of the iobbying entity engaged by the reporting entity Identified in hem 4 to influence the covered Federal action. (b)Enter the .full names of the Individualist performing services, and kidude full address if different from 10 (a). Enter Last None, First Name, and Middle Initial (M% 11. Enter the amount of rnmpensadon paid or teasonably expected to be paid. by the reporting entity (lam 4) to the lobbying entity (Nem 10). indicate whether the payment has been mode factual) or will be made (planned), Check all boxes that apply. If Ods Is a material change report enter the cumulstive amount of payment made or piavied to be made. 12. Check the appropriate box(es). Check mit boxes that apply. If payment is made through an in•kind contribution, specify the rsanoe and value of the in-kind payment. 11. Check the approptiate bogies). Check all boxes that APPiy. If other. gmdty nature. 141 hovide a specific and detailed dascgption at the services that the lobbyist has performed or will be expected to perform, and the date(d of any services tendered. Include all preparatory and related activity, rot lust time spent in actual contact with Federal officials. Identity the Fed cal official(a) or empbybe(s) contacted or the ofgcer(s), empioyee(t ), or Mamberis) of Congress that were contacted, 15. Check whether or not a SF•Lt LLA Continuation Sheets) is ariathed. 16. The certifying official stall sign and date doe form, print W%ther name, title, and telephone number. Public assorting burden for the coliecuon d kdon"oW t+ is exein red so average 70 wwrem par response, including time for revie.wrrg ins r&wbans, "%Khwq emotig ndace sources, pow it .id wwiriWnbeg the sf W needed, and oeeeWeb"! and re+kwvng d e ex>uecaen of iMawan ud . kvid earenenn neaiding the Morden eaierote or any wirer W+scr of elk tethmon Of int mutien, inciuding "WWXbont far kpk" this brwean, to the Office of and tnsdaet h Isenirak Redseoan Proied 90300046h WA+49ton, C.C. 1090.1. 419 Pt. 34, App. B 40 CFR Ch. 1 (7- 1 -07 Edition) DISCLOSURE OF LOBBYING ACTIVMES k�vOMD CONTINUAl1ON SHEET o'y� arponlnR E,atry: Pie _ � w.d.r r.n. • uw 420 I