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Barry McVay's FEDERAL CONTRACTS DISPATCH

DATE: May 18, 2000

FROM: Barry McVay, CPCM

SUBJECT: Environmental Protection Agency Acquisition Regulation (EPAAR); Award Fee

SOURCE: Federal Register, May 18, 2000, Vol. 65, No. 97, page 31498

AGENCIES: Environmental Protection Agency (EPA)

ACTION: Direct Final Rule

SYNOPSIS: EPA will amend the EPAAR to comply with changes made to the Federal Acquisition Regulation (FAR) by Federal Acquisition Circular (FAC) 97-15 regarding award fee determinations unless EPA receives adverse comments on the direct final rule. The changes to the FAR were made to implement the rulings of the United States Court of Appeals and the United States Court of Federal Claims that the Contracts Disputes Act applies to all disputes arising under government contracts unless a more specific statute provides for other remedies.

EDITOR'S NOTE: The EPAAR is Chapter 15 of Title 48 of the Code of Federal Regulations. It is available on the Internet at http://www.epa.gov/oamrfp12/ptod/epaar.pdf.

DATES: This rule is being published as a direct final rule, which EPA reserves for rules it believes are noncontroversial. This rule will become effective on August 16, 2000, without further notice, unless EPA receives adverse comments by June 19, 2000. If EPA receives adverse comments, it will withdraw the rule and publish a proposed rule in a future edition of the Federal Register.

ADDRESSES: Comments should be submitted to U.S. Environmental Protection Agency, Office of Acquisition Management (3802R), Ariel Rios Building, 1200 Pennsylvania Avenue, NW, Washington, DC 20460. Comments may be submitted by e-mail to rellins.jean@epa.gov.

FOR FURTHER INFORMATION CONTACT: Jean Rellins, 202-564-4434.

SUPPLEMENTAL INFORMATION: FAC 97-15 amended the FAR to implement the rulings of the United States Court of Appeals in Burnside-Ott Aviation Training Center v. Dalton, Secretary of the Navy, 107 F.3d 854 (Fed. Cir. 1997) and of the United States Court of Federal Claims in Rig Masters, Inc. v. The United States, 1998 WL 835097 (Fed. Cl.), both of which ruled that the Contract Disputes Act applies to all disputes arising under government contracts unless a more specific statute provides for remedies arising from a contract dispute. Essentially, FAC 97-15 deleted the phrase that the government's unilateral decision is "not subject to the Disputes clause" and replaced it with "made solely at the discretion of the government."

To comply with the courts' rulings and FAC 97-15, EPA is revising paragraph (b) of EPAAR 1552.216-70, Award Fee, by removing "and are not subject to appeal under the Disputes clause" from the sentence "Award fee determinations made by the Government under this contract are unilaterally determined by the Fee Determination Official (FDO) and are not subject to appeal under the Disputes clause." In addition, the rule adds the following two sentences to the paragraph: "The amount of the award fee to be paid is determined by the Government's judgmental evaluation of the contractor's performance in terms of the criteria stated in the contract. This determination and the methodology for determining the award fee are unilateral decisions made solely at the discretion of the Government."

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

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