PART 203—TECHNICAL ASSISTANCE FOR PUBLIC PARTICIPATION (TAPP) IN DEFENSE ENVIRONMENTAL RESTORATION ACTIVITIES Authority: 10 U.S.C. 2705. Source: 63 FR 5261, Feb. 2, 1998, unless otherwise noted. § 203.1 Authority. Part 203 is issued under the authority of section 2705 of Title 10, United States Code. In 1994, Congress authorized the Department of Defense (DoD) to develop a program to facilitate public participation by providing technical assistance to local community members of Restoration Advisory Boards (RABs) and Technical Review Committees (TRCs) (section 326 of the National Defense Authorization Act for Fiscal Year 1995, Pub.L. 103-337). In 1996, Congress revised this authority (section 324 of the National Defense Authorization Act for Fiscal Year 1996, Pub.L. 104-112). It is pursuant to this revised authority, which is codified as new subsection (3) of section 2705, that the Department of Defense issues this part. § 203.2 Purpose and availability of referenced material. (a) This part establishes the Technical Assistance for Public Participation (TAPP) program for the Department of Defense. It sets forth policies and procedures for providing technical assistance to community members of TRCs and RABs established at DoD installations in the United States and its territories. This part sets forth the procedures for the Department of Defense to accept and evaluate TAPP applications, to procure the assistance desired by community members of RABs and TRCs, and to manage the TAPP program. These provisions are applicable to all applicants/recipients of technical assistance as discussed in § 203.4 of this part. (b) Any reference to documents made in this part necessary to apply for TAPP (e.g., the Office of Management and Budget (OMB) Circulars or DoD forms) are available through the DoD installations, the military department headquarters, or from the Department of Defense, Office of the Deputy Under Secretary of Defense for Environmental Security (DUSD(ES)), 3400 Defense Pentagon, Washington, DC 20301-3400. § 203.3 Definitions. As used in this part, the following terms shall have the meaning set forth: Affected. Applicant. Application. Assistance provider. Assistance provider's project manager. Community Co-chair. Community member. Community point of contact. Contact. Contracting officer. Contractor. Cost estimate. DoD Component. DoD Component Deputy Assistant Secretary. DoD Installation. DoD RAB Co-chair. EPA. Firm fixed price contract. Formerly Used Defense Site (FUDS). Purchase order. Restoration Advisory Board (RAB). Statement of Work. TAPP approval. TAPP project description. Technical assistance. Technical assistance does not include those activities prohibited under Section 203.11 of this part, such as litigation or underwriting legal actions; political activity; generation of new primary data such as well drilling and testing, including split sampling; reopening final DoD decisions or conducting disputes with the Department of Defense; or epidemiological or health studies, such as blood or urine testing. Technical Review Committee (TRC). § 203.4 Major components of the TAPP process. (a) The Department of Defense will issue purchase orders to technical assistance, facilitation, training, and other public participation assistance providers subject to the purchase limit per order as resources continue to be available. If multiple purchase orders are needed to assist community members of a particular RAB or TRC, the combined sum of these purchase orders cannot exceed $100,000 or, during any one year, the lesser of $25,000 or 1 percent of the installation's total projected environmental restoration cost-to-complete. Note that these limitations refer to the maximum allowable technical assistance funding per RAB/TRC. Resources available within a given year may vary. These limitations apply unless a waiver is granted by the DoD Component Secretary or equivalent for the installation in question. The $100,000 total and $25,000 annual limitations may be waived, as appropriate, to reflect the complexity of response action, the nature and extent of contamination at the installation, the level of activity at the installation, projected total needs as identified by the TAPP recipient, the size and diversity of the affected population, and the ability of the TAPP recipient to identify and raise funds from other sources. (b) Community members of the RAB/TRC will provide a description of the services requested (TAPP Project Description) and, if desired, the names of one or more proposed technical assistance providers to the DoD RAB Co-Chair, who will ensure the application is submitted to the installation commander or other designated authority and to the appropriate DoD contracting office. Technical assistance providers proposed by the community members of a RAB or TRC at each DoD installation that meets the minimum set of organizational qualifications guidelines provided by the Department of Defense in § 203.12 of this part will be added to the governments list of bidders for the proposed procurement. § 203.5 TAPP process. This section provides an overview of the TAPP process. Specific details referred to in this section can be found in subsequent sections of this part. (a) TAPP funding. (1) Closure status. (2) Budget. (3) Installation restoration program status. (4) Presence (or absence) of alternate funding. (5) Relative risk posed by sites at the installation. (6) Type of task to be funded. (7) Community concern. (8) Available funding. (b) Identification of proposed TAPP project. (c) TAPP project request. (d) Purchase orders. (e) Reporting requirements. § 203.6 Cost principles. (a) Non-profit contractors must comply with the cost principles in OMB Circular A-122. Copies of the circular may be obtained from EOP Publications, 725 17th NW, NEOB, Washington, DC 20503. (b) For-profit contractors and subcontractors must comply with the cost principles in the FAR (48 CFR part 31). § 203.7 Eligible applicants. Eligible applicants are community members of RABs or TRCs. Furthermore, the RABs or TRCs must be comprised of at least three community members to ensure community interests are broadly represented. The applicant must certify that the request represents the wishes of a simple majority of the community members of the RAB or TRC. Certification includes, but is not limited to, the results of a roll call vote of community members of the RAB or TRC documented in the meeting minutes. Other requirements of the application are detailed in § 203.9 of this part. § 203.8 Evaluation criteria. The Department of Defense will begin the TAPP procurement process only after it has determined that all eligibility and responsibility requirements listed in §§ 203.6, 203.7, and 203.9 of this part are met, and after review of the specific provider qualifications as submitted in the narrative section of the application. In addition, the proposed TAPP project must meet the eligibility criteria as specified in §§ 203.10 and 203.11 of this part. Projects that fail to meet those requirements relating to the relevance of the proposed project to the restoration activities at the installation will not be approved. § 203.9 Submission of application. The applicant must submit a TAPP application to begin the TAPP procurement process. The application form is included as appendix A of this part and can be obtained from the DoD installation, the DoD Component headquarters, or directly from the Department of Defense, Office of the Deputy Under Secretary of Defense for Environmental Security, 3400 Defense Pentagon, Washington, D.C. 20301-3400. The applications will not be considered complete until the following data elements have been entered into the form: (a) Installation. (b) Source of TAPP request (names of RAB or TRC). (c) Certification of majority request. (d) RAB/TRC contact point for TAPP project. (e) Project title. (f) Project type (e.g. data interpretation, training, etc.). (g) Project purpose and description (descriptions, time and locations of products or services desired). (h) Statement of eligibility of project. (i) Proposed provider, if known. (j) Specific qualifications or criteria for provider. § 203.10 Eligible activities. (a) TAPP procurements should be pursued by the RAB or TRC only to the extent that Federal, State, or local agencies responsible for overseeing environmental restoration at the facility do not have the necessary technical expertise for the proposed project, or the proposed technical assistance will contribute to the efficiency, effectiveness, or timeliness of environmental restoration activities at the installation and is likely to contribute to community acceptance of those activities. (b) TAPP procurements may be used to fund activities that will contribute to the public's ability to provide advice to decision-makers by improving the public's understanding of overall conditions and activities. Categories of eligible activities include the following: (1) Interpret technical documents. (i) Installation restoration program site studies, engineering documents, such as site inspections, remedial investigations, feasibility studies, engineering evaluation and cost analyses, and decision documents (including records of decision); (ii) Risk assessments, including baseline and ecological risk assessments conducted by the installation; and (iii) Health assessments, such as those conducted by the Agency for Toxic Substances and Disease Registry (ATSDR). (2) Assess technologies. (3) Participate in relative risk site evaluations. (4) Understand health implications. (5) Training, where appropriate. § 203.11 Ineligible activities. The following activities are ineligible for assistance under the TAPP program: (a) Litigation or underwriting legal actions, such as paying for attorney fees or paying for a technical assistance provider to assist an attorney in preparing legal action or preparing for and serving as an expert witness at any legal proceeding regarding or affecting the site. (b) Political activity and lobbying as defined by OMB Circular A-122. (c) Other activities inconsistent with the cost principles stated in OMB Circular A-122, “Cost Principles for Non-Profit Organizations.” (d) Generation of new primary data, such as well drilling and testing, including split sampling. (e) Reopening final DoD decisions, such as the Records of Decision (see limitations on judicial review of remedial actions under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) Section 113(h)) or conducting disputes with the Department of Defense). (f) Epidemiological or health studies, such as blood or urine testing. (g) Community outreach efforts, such as renting a facility and conducting public meetings, or producing and distributing newsletters. § 203.12 Technical assistance for public participation provider qualifications. (a) A technical assistance provider must possess the following credentials: (1) Demonstrated knowledge of hazardous or toxic waste issues and/or laws. (2) Academic training in a relevant discipline (e.g., biochemistry, toxicology, environmental sciences, engineering). (3) Ability to translate technical information into terms understandable to lay persons. (b) A technical assistance provider should possess the following credentials: (1) Experience working on hazardous or toxic waste problems. (2) Experience in making technical presentations. (3) Demonstrated writing skills. (4) Previous experience working with affected individuals or community groups or other groups of individuals. (c) The technical assistance provider's qualifications will vary according to the type of assistance to be provided. Community members of the RAB/TRC may suggest additional provider qualifications as part of the application for technical assistance. These additional qualifications may be used by the Department of Defense to target the most appropriate providers during the procurement process. Examples of such criteria could include prior work in the area, knowledge of local environmental conditions or laws, specific technical capabilities, or other relevant expertise. § 203.13 Procurement. Procurements will be conducted as purchase orders in accordance with the FAR (48 CFR part 13). Under these procedures, procurements not exceeding $100,000 are reserved exclusively for small businesses, and will be conducted as competitive procurements. Procurements below a value of $2,500 are considered “micro-purchases.” These procurements do not require the solicitation of bids and may be conducted at the discretion of the contracting officer. § 203.14 RAB/TRC reporting requirements. The community point of contact of the RAB or TRC must submit a report, to be provided to the installation and to DUSD(ES), to enable the Department of Defense to meet DoD reporting requirements to Congress. This report should include a description of the TAPP project, a summary of services and products obtained, and a statement regarding the overall satisfaction of the community member of the RAB or TRC with the quality of service and/or products received. § 203.15 Method of payment. The SAP set forth in FAR (48 CFR part 13) require purchase orders to be conducted on a firm-fixed-price basis, unless otherwise authorized by agency procedures. The Department of Defense anticipates all TAPP awards to be firm-fixed-price procurements. § 203.16 Record retention and audits. The recipient technical assistance providers shall keep and preserve detailed records in connection with the contract reflecting acquisitions, work progress, reports, expenditures and commitments, and indicate the relationship to established costs and schedules. § 203.17 Technical assistance provider reporting requirements. Each technical assistance provider shall submit progress reports, financial status reports, materials prepared for the RAB/TRC, and a final report to the DoD installation for the TAPP project as specified by the specific purchase order agreement. The final report shall document TAPP project activities over the entire period of support and shall describe the achievements with respect to stated TAPP project purposes and objectives. § 203.18 Conflict of interest and disclosure requirements. The Department of Defense shall require each prospective assistance provider on any contract to provide, with its bid or proposal: (a) Information on its financial and business relationship with the installation, RAB/TRC members, or any/all potentially responsible parties (PRPs) at the site, and with their parent companies, subsidiaries, affiliates, subcontractors, contractors, and current clients or attorneys and agents. This disclosure requirement encompasses past and anticipated financial and business relationships, including services related to any proposed or pending litigation, with such parties. (b) Certification that, to the best of its knowledge and belief, it has disclosed such information or no such information exists. (c) A statement that it shall disclose immediately any such information discovered after submission of its bid or after award. The contracting officer shall evaluate such information and shall exclude any prospective contractor if the contracting officer determines the prospective contractor has a potential conflict of interest that is both significant and cannot be avoided or otherwise resolved. If, after award, the contracting officer determines that a conflict of interest exists that is both significant and cannot be avoided or resolved, the contract will be terminated for cause. (d) Contractors and subcontractors may not be technical assistance providers to community members of RABs/TRCs at an installation where they are performing cleanup activities for the Federal or State government or any other entity. § 203.19 Appeals process. DoD Components will establish an appeals process to settle potential disputes between the Department of Defense and the public regarding certain decisions arising out of the TAPP process. The Department of Defense recognizes that the RAB/TRC may disagree with the findings of the installation commander that a proposed TAPP project is ineligible, either because of the availability of alternate sources of assistance or because the project does not meet the eligibility criteria established in this part. It is in the best interests of the Department of Defense and the community members of RABs and TRCs to anticipate and avoid disputes and to work cooperatively to resolve potential differences of opinion. However, in certain circumstances, the RAB/TRC community members may feel that their needs were not adequately served by the decisions of the Department of Defense. In this instance, the hierarchical structure and chain-of-command within each DoD Component will serve as the avenue for appeal. Appeals will be considered within the chain-of-command, and, in general, will be resolved at the lowest level possible. The highest level of appeal will be at the DoD Component Deputy Assistant Secretary level with authority over the DERP and BRAC environmental programs. Inherently governmental functions, such as the procurement process governed by the FAR, are not subject to appeal. Appendix A to Part 203—Technical Assistance for Public Participation Request Form