DATE: May 22, 2000

FROM: Barry McVay, CPCM

SUBJECT: Defense Federal Acquisition Regulation Supplement (DFARS); Pollution Control and Clean Air and Water

SOURCE: Federal Register, May 22, 2000, Vol. 65, No. 99, page 32065

AGENCIES: Department of Defense (DOD)

ACTION: Proposed Rule

SYNOPSIS: DOD is proposing to amend the DFARS to revise and relocate policy on the level of approval required to exempt a contract from certain restrictions of the Clean Air Act or the Clean Water Act. The policy is moved from DFARS Subpart 223.1, Pollution Control and Clean Air and Water, to DFARS Subpart 209.4, Debarment, Suspension, and Ineligibility, because Federal Acquisition Regulation (FAR) Subpart 23.1 was removed by Federal Acquisition Circular (FAC) 97-15.

DATES: Comments should be submitted on or before July 21, 2000, to be considered in the formation of the final rule.

ADDRESSES: Submit comments to Defense Acquisition Regulations Council, Ms. Sandra Haberlin, PDUSD (AT&L) DP (DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 20301-3062; fax: 703-602-0350; e-mail: dfars@acq.osd.mil. Cite DFARS Case 2000-D004 when referring to this proposed rule.

FOR FURTHER INFORMATION CONTACT: Ms. Sandra G. Haberlin, 703-602-0289.

SUPPLEMENTAL INFORMATION: On December 27, 1999, FAC 97-15 removed FAR Subpart 23.1. This was done because the Environmental Protection Agency (EPA) identifies violators of the Clean Air Act and the Clean Water Act in the List of Parties Excluded from Federal Procurement and Nonprocurement Programs, so FAR Subpart 23.1 was no longer considered necessary. Therefore, on December 27, 1999, FAC 97-15 was published which removed FAR Subpart 23.1 effective February 25, 2000.

Since FAR Subpart 23.1 no longer exists, DFARS Subpart 223.1 must be removed. (EDITOR'S NOTE: The National Aeronautics and Space Administration removed its NASA FAR Supplement (NFS) Subpart 1823.1 on May 16, 2000, for this same reason. See the May 16, 2000, FEDERAL CONTRACTS DISPATCH "National Aeronautics and Space Administration Federal Acquisition Regulation (FAR) Supplement (NFS); Contract Financing.")

However, FAR Subpart 23.1 included FAR 23.104, Exemptions, which stated that the agency head may exempt any contract or subcontract from the prohibition against award of a contract to a Clean Air Act or Clean Water Act violator "for 1 year when it is in the paramount interest of the United States to do so" as provided by EPA's regulations. DFARS 223.104, Exemptions, limited the delegation of this authority to "a level no lower than an official who is appointed by and with the advice of the Senate."

Since EPA's regulations allowing agencies to exercise this exemption authority are still in force, DOD proposes to remove DFARS Subpart 223.1, and relocate the text to DFARS 209.405, Effect of Listing, as paragraph (b) because the corresponding text at FAR 9.405(b) addresses matters relating to entities on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs (the current DFARS 209.405 text would be redesignated as paragraph (a)). However, the new paragraph (b) would permit the delegation of the exemption authority to a level no lower than a general or flag officer or a member of the Senior Executive Service.

To clarify that this exemption authority may be delegated, the redesignated DFARS 209.405(a) would be revised to state that the 10 U.S.C. 2393 provisions requiring the secretary of a military department to make a "compelling reason" determination apply only to "a contractor that is debarred or suspended from procurement programs", not to "a contractor on the list of parties excluded from procurement programs" as currently stated. This clarification is necessary because the List of Parties Excluded from Federal Procurement and Nonprocurement Programs contains "the names [of] parties debarred, suspended, or voluntarily excluded,...proposed from debarment, and determined to be ineligible" (definition of "List of Parties Excluded from Federal Procurement and Nonprocurement Programs" in FAR 9.403, Definitions.) FAR 9.403 also states that an "ineligible" party is excluded from government contracting and subcontracting "pursuant to statutory, executive order, or regulatory authority...for example, pursuant to the Davis-Bacon Act, the Service Contract Act...or the Environmental Protection Acts and [related] executive orders." Therefore, the secretary of a military department is not required by 10 U.S.C. 2393 to make the "compelling reason" determination to contract with Clean Air Act or Clean Water Act violators -- this authority may be delegated.

FOR FURTHER INFORMATION CONTACT: Barry McVay at 703-451-5953 or by e-mail to BarryMcVay@FedGovContracts.com.

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