Federal Acquisition Regulation; Training and Education Cost Principle, 57470-57473 [05-19478]
Download as PDF
<![CDATA[
57470
Federal Register / Vol. 70, No. 189 / Friday, September 30, 2005 / Rules and Regulations
changes to the FAR do not impose
information collection requirements that
require the approval of the Office of
Management and Budget under 44
U.S.C. 3501, et seq.
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
List of Subjects in 48 CFR Part 31
Government procurement.
Dated: September 22, 2005.
Julia B. Wise,
Director, Contract Policy Division.
48 CFR Part 31
Therefore, DoD, GSA, and NASA
amend 48 CFR part 31 as set forth
below:
RIN 9000–AJ38
PART 31—CONTRACT COST
PRINCIPLES AND PROCEDURES
AGENCIES: Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
[FAC 2005–06; FAR Case 2001–021; Item
XI]
I
Federal Acquisition Regulation;
Training and Education Cost Principle
1. The authority citation for 48 CFR
part 31 continues to read as follows:
I
Authority: Authority: 40 U.S.C. 121(c); 10
U.S.C. chapter 137; and 42 U.S.C. 2473(c).
2. Amend section 31.205–35 by
revising paragraph (b)(4); and adding
paragraphs (b)(5) and (b)(6) to read as
follows:
I
31.205–35
Relocation costs.
*
*
*
*
*
(b)* * *
(4) Amounts to be reimbursed shall
not exceed the employee’s actual
expenses, except as provided for in
paragraphs (b)(5) and (b)(6) of this
subsection.
(5) For miscellaneous costs of the type
discussed in paragraph (a)(5) of this
subsection, a lump-sum amount, not to
exceed $5,000, may be allowed in lieu
of actual costs.
(6)(i) Reimbursement on a lump-sum
basis may be allowed for any of the
following relocation costs when
adequately supported by data on the
individual elements (e.g.,
transportation, lodging, and meals)
comprising the build-up of the lumpsum amount to be paid based on the
circumstances of the particular
employee’s relocation:
(A) Costs of finding a new home, as
discussed in paragraph (a)(2) of this
subsection.
(B) Costs of travel to the new location,
as discussed in paragraph (a)(1) of this
subsection (but not costs for the
transportation of household goods).
(C) Costs of temporary lodging, as
discussed in paragraph (a)(2) of this
subsection.
(ii) When reimbursement on a lumpsum basis is used, any adjustments to
reflect actual costs are unallowable.
*
*
*
*
*
[FR Doc. 05–19477 Filed 9–29–05; 8:45 am]
BILLING CODE 6820–EP–S
VerDate Aug<31>2005
17:16 Sep 29, 2005
Jkt 205001
SUMMARY: The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) have agreed on a final rule
amending the Federal Acquisition
Regulation (FAR) by revising the
‘‘training and education costs’’ contract
cost principle. The amendment
streamlines the cost principle and
increases clarity by eliminating
restrictive and confusing language, and
by restructuring the rule to list only
specifically unallowable costs. The final
rule eliminates several specific
limitations on the allowability of costs
associated with the various categories of
education, eliminates the disparate
treatment of full-time and part-time
undergraduate education costs, and
limits allowable costs to training and
education related to the field in which
the employee is working or may
reasonably be expected to work. The
rule makes job-related training and
education costs generally allowable,
except for six public policy exceptions
that are retained from the current cost
principle. Except for the six expressly
unallowable cost exceptions, the
reasonableness of specific contractor
training and education costs is assessed
by reference to the FAR section entitled
‘‘Determining reasonableness.’’
DATES: Effective Date: October 31, 2005.
FOR FURTHER INFORMATION CONTACT: The
FAR Secretariat at (202) 501–4755 for
information pertaining to status or
publication schedules. For clarification
of content, contact Mr. Jerry Olson at
(202) 501–3221. Please cite FAC 2005–
06, FAR case 2001–021.
SUPPLEMENTARY INFORMATION:
A. Background
The Councils published a proposed
FAR rule in the Federal Register (67 FR
PO 00000
Frm 00024
Fmt 4701
Sfmt 4700
34810) on May 15, 2002, with a request
for comments by July 15, 2002. On June
11, 2002, an amendment was published
in the Federal Register (67 FR 40136) to
correct an error in the Supplementary
Information section accompanying the
proposed rule. Six respondents
submitted public comments. As a result
of the comments received, the Councils
made significant changes to the
proposed FAR rule and published a
second proposed FAR rule in the
Federal Register (69 FR 4436) on
January 29, 2004, with a request for
comments by March 29, 2004.
Nine respondents submitted
comments in response to the second
proposed FAR rule. A discussion of
these public comments is provided
below. The Councils considered all
comments and concluded that the
proposed rule should be converted to a
final rule, with changes to the proposed
rule. Differences between the second
proposed rule and final rule are
discussed in Section B, Comments 1, 2,
4, and 6, below.
B. Public Comments
Proposed paragraph (a): Education for
sole purpose to obtain academic degree
or qualify for job.
Comment 1: Seven respondents
generally supported the proposed rule;
however, they strongly recommended
that proposed paragraph (a) be deleted
before issuing a final rule. Several of the
respondents pointed out that paragraph
(a) is inconsistent with the Councils’
own Federal Register comments that
they ‘‘support upward mobility, job
retraining, and educational
advancement.’’ In this regard, one
respondent stated its concern that
paragraph (a) would prevent it from
providing ‘‘the educational
opportunities that we have provided for
decades.’’ Some respondents
complained that it had ‘‘no idea how
one is to discern whether the training
and education relates ‘solely’ to
obtaining an academic degree or to a
particular position’’ and that
‘‘implementation of this provision will
be burdensome and lead to contested
costs; hardly a simplification that
increases the clarity of the cost
principle.’’
Several respondents challenged the
fundamental notion that the allowability
of contractor employee training and
education costs must parallel exactly
the treatment afforded Federal
employees. One respondent wrote—
‘‘We believe that utilization of the test of
whether the Federal Government is willing to
reimburse education costs for Federal
employees is an inappropriate basis for
determining cost allowability. The
E:\FR\FM\30SER4.SGM
30SER4
Federal Register / Vol. 70, No. 189 / Friday, September 30, 2005 / Rules and Regulations
benchmark for measuring the cost
reasonableness of payments for education
and training should be based on commercial
practices that encourage the continued
training and education of our workforce.
Accordingly, we recommend that paragraph
31.205–44(a) of the proposed rule ... be
deleted prior to issuing the final rule.’’
To further support this position,
another respondent pointed out that
Congress has long advocated increased
use of commercial practices in the
Federal acquisition process:
‘‘Congress has consistently endorsed and
supported the adoption of commercial
practices—not Government practices—in the
Government procurement arena. The most
recent example is the 2004 DoD
Authorization Legislation (P.L. 108–136),
Section 1423. This section prescribes the
establishment of a panel to propagate the use
of commercial practices by, among other
things, reviewing all regulations.’’
One respondent stated that the
proposed paragraph (a) ‘‘will decrease
industry’s ability to assist the U.S.
Government in ensuring future
economic strength’’ through private
sector training and education which
often involves employees ‘‘in
Government–authorized,
socioeconomic/disadvantaged programs
that encourage upward mobility.’’ In
support of this assessment, the
respondent provided a detailed
description of the benefits that accrue to
the company, the Government, and
society in general from its Employee
Scholar Program (ESP):
‘‘There are over 9,000 U.S. employees
(approximately 25% of whom are hourly
workers) currently participating in
respondent’s ESP. These people are pursuing
degrees from colleges and universities that
many undoubtedly could not have afforded
to fund on their own. ESP is encouraging
educational pursuits that support social,
political, and business needs, for example:
• Approximately 40% of the respondent’s
employees participating from the aerospace
and defense business units in the ESP are
obtaining first degrees;
• Over 80% of the degrees awarded to the
respondent’s employees from the aerospace
and defense business units over the last 3
years are in the business/management or
technical/engineering areas (less than 3% of
degrees awarded were not in current or
possible future job-related areas);
• Female and Hispanic employees
participate in the ESP at about 11/2 times
their proportion in the respondent’s
workforce;
• ESP participants have increased loyalty
and motivation to remain with the
respondent. They leave their jobs at a lower
rate than the general population, thereby
enhancing retention and reducing allowable
recruiting, relocation, and job training costs;
• ESP graduates are promoted at a higher
rate than the general population;
• The average age of a ESP participant is
39 years old (suggesting that most
participants are of an age where they are able
VerDate Aug<31>2005
17:16 Sep 29, 2005
Jkt 205001
to use their education on the job, and seek
further education in the future to keep their
skills current).’’
Finally, one respondent summarized
the confusion expressed by several
respondents over the purpose and effect
of the proposed paragraph (a):
‘‘However, we are troubled by the
statement in the comment section that the
Councils’ intent is also to ’’... make it (the
rule) consistent with recent statutory changes
that cover the payment of costs for Federal
employee academic degree training.’’ This
statement and the resulting proposed
paragraph 31.205–44(a) nullify the benefits of
simplification and adopting commercial
practices. We are perplexed as to how the
costs for allowing and encouraging
employees to obtain degrees and take classes
to provide for future opportunities is against
public policy and how these costs potentially
could be classified as unallowable.’’
Councils’ response: The Councils
agree that the allowability of contractor
employee training and education costs,
to the extent that it is job related, should
be rooted in sound commercial practices
that encourage upward mobility in the
private sector workforce. The Councils
also are acutely sensitive to the concern
about the appearance of disparate
treatment of contractor and Federal
employees’ full-time undergraduate
level educational expenses. Therefore,
the Councils carefully examined the
comments of the largest Federal
employee union, the American
Federation of Government Employees
(AFGE), and noted that the inclusion of
the statutory limitations on agency
payment of Federal employee
educational costs in paragraph (a)
apparently did little to temper the
union’s strong opposition to the
proposed rule. Instead, AFGE focused
its criticism primarily on the lack
therein of a job-relatedness requirement
for allowable contractor employee fulltime undergraduate educational costs,
while it asserted that a demonstration of
job-relatedness would be essential
before the Government would pay these
expenses for a Federal employee (see
Comment 6, below). Accordingly, the
Councils have deleted the proposed
paragraph (a) and added the following
allowability requirement for all training
and education costs in the introductory
sentence of the final rule: ‘‘Costs of
training and education that are related
to the field in which the employee is
working or may reasonably be expected
to work are allowable, except as
follows:’’ The Councils believe that this
broad accommodation of AFGE’s
principal criticism of the proposed rule
constitutes sound public policy.
PO 00000
Frm 00025
Fmt 4701
Sfmt 4700
57471
Proposed paragraph (d): Full-time
graduate level education.
Comment 2: Three respondents
expressed concern that the proposed
paragraph (d) would make currently
allowable full-time graduate level
educational costs unallowable. They
pointed out that under the current
coverage for such education, only the
costs in excess of two years or the length
of the graduate degree program,
whichever is less, are unallowable. They
argued that, in contrast, the proposed
paragraph (d) would make the entire
cost (not just the excess) of the graduate
program unallowable if it exceeded two
years or the length of the degree
program.
Councils’ response: Concur. There
was never any intent to change this
aspect of the current allowability
criteria for full-time graduate level
educational costs. Accordingly, the
Councils have revised this coverage
(now paragraph (c) of the final rule) to
clarify that only the costs in excess of
two school years or the length of the
degree program, whichever is less, are
unallowable.
Proposed paragraph (e): Grants.
Comment 3: Two respondents
recommended that the proposed
paragraph (e) on grants to educational or
training institutions be deleted ‘‘because
this subject matter is adequately covered
by FAR 31.205–8, Contributions or
donations.’’
Councils’ response: Nonconcur. The
Councils believe that the proposed
paragraph (e) (which is essentially the
same as the current paragraph (g),
Grants) provides very helpful guidance
regarding specific types of unallowable
grants to educational or training
institutions which should be retained.
To avoid confusion, the Councils have
also added back the explanatory words
‘‘are considered contributions and’’
from the current paragraph (g) to this
provision (now paragraph (d) of the
final rule).
Proposed paragraph (g): Employee
dependents college savings plans.
Comment 4: Three respondents
expressed concern that the proposed
paragraph (g), which makes costs of
university and college plans for
employee dependents unallowable,
could be misinterpreted to make the
administrative costs of such plans
unallowable. One of the respondents
suggested changing the words ‘‘Costs
of’’ to ‘‘Contractor contributions to’’ to
clarify the intent of this provision.
Councils’ response: Concur. The
Federal Register notice accompanying
E:\FR\FM\30SER4.SGM
30SER4
57472
Federal Register / Vol. 70, No. 189 / Friday, September 30, 2005 / Rules and Regulations
the January 29, 2004, proposed rule
provided the following response to
essentially this same industry concern:
‘‘The cost principle does not address the
administrative costs of such plans; therefore,
the administrative costs are allowable,
subject to the reasonableness criteria at FAR
31.201–3. However, any contributions to the
plan by the company for employee
dependents would be unallowable under the
redesignated paragraph (g) in this second
proposed rule.’’
Even though the Councils are
unaware of any problems involving the
misapplication of this provision to the
administrative costs of college savings
plans, they see no problem in making
the suggested clarifying change. As
stated above, the intent of the proposed
paragraph (g) (which is the same as that
of the current paragraph (j), Employee
dependent education plans) is to make
contractor contributions to college
savings plans for employee dependents
unallowable. Reasonable administrative
costs for college savings plans funded
by employee contributions should
continue to be allowable. In revising
this provision (now paragraph (f) of the
final rule), the Councils have also used
the appropriate financial planning term,
‘‘college savings plans.’’
Current paragraph (h): Advance
agreements.
Comment 5: Two respondents argued
that in view of the potential changes in
the allowability of full-time graduate
level educational costs in the proposed
paragraph (d), it is necessary to retain
the current paragraph (h), Advance
agreements, in order to keep currently
allowable costs from becoming
unallowable. This is because the current
paragraph (h) permits advance
agreements that would make costs
allowable ‘‘in excess of those otherwise
allowable under paragraphs (c) and (d)’’
of the current cost principle.
Councils’ response: Nonconcur. Since
the Councils have revised the coverage
for full-time graduate level educational
costs in the final rule to prevent a
possible ‘‘all or nothing’’ interpretation
(see Comment 2, above), this should no
longer be a concern for industry.
Job-relatedness.
Comment 6: In opposing the proposed
rule, one respondent categorized it as
‘‘another attempt on the part of the
Director of Procurement and
Acquisition Policy at DoD to accord
contractors and contractor employees
further benefits not granted to Federal
employees in similar circumstances.’’
Continuing that theme, the respondent
expressed its principal criticism of the
proposed rule as follows:
VerDate Aug<31>2005
17:16 Sep 29, 2005
Jkt 205001
‘‘The proposed rule makes at least one
extremely offensive change to the contract
cost allowability rules that is not accorded to
Federal employees, despite the misleading
statement contained in the proposal’s
preamble. Permitting contractors to claim as
an allowable cost, the costs of providing
employees with full-time undergraduate
education, amounts to nothing more than a
contractor scholarship program, at taxpayer
expense. While the respondent, as a matter
of public policy, encourages Federal
employees to further their education and
training, it is well understood, that when
taxpayers pick up these costs, such education
and training must reasonably relate to the
employee’s actual or anticipated duties.’’
Councils’ response: Partially concur.
The Councils see significant benefits to
both the Government and industry in
publishing the final rule in this case.
However, the Councils agree with the
respondent that job-relatedness should
be a requirement for allowable
contractor employee full-time
undergraduate level educational costs.
In fact, the Councils have added such an
allowability requirement for all training
and education costs in the introductory
sentence of the recommended final rule
(see Comment 1, above). The Councils
believe this change constitutes sound
public policy.
Applicability to Federal employees.
Comment 7: One respondent stated
‘‘The combination of training and
education for the 1102 series is critical,
without the Government paying for the
required courses and training, most
employees could not afford to get the
degree required.’’ The respondent
concluded with the request to ‘‘Please
reconsider and completely fund the
education and training of current
employees.’’
Councils’ response: The respondent
apparently confused the proposed rule
as applying to Federal employees. The
proposed rule does not apply to Federal
employees.
C. Regulatory Planning and Review
This is not a significant regulatory
action and, therefore, was not subject to
review under Section 6(b) of Executive
Order 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
D. Regulatory Flexibility Act
The Department of Defense, the
General Services Administration, and
the National Aeronautics and Space
Administration certify that this final
rule will not have a significant
economic impact on a substantial
number of small entities within the
meaning of the Regulatory Flexibility
Act, 5 U.S.C. 601, et seq., because most
PO 00000
Frm 00026
Fmt 4701
Sfmt 4700
contracts awarded to small entities use
simplified acquisition procedures or are
awarded on a competitive, fixed-price
basis and do not require application of
the cost principle discussed in this rule.
E. Paperwork Reduction Act
The Paperwork Reduction Act does
not apply because the changes to the
FAR do not impose information
collection requirements that require the
approval of the Office of Management
and Budget under 44 U.S.C. 3501, et
seq.
List of Subjects in 48 CFR Part 31
Government procurement.
Dated: September 22, 2005.
Julia B. Wise,
Director, Contract Policy Division.
Therefore, DoD, GSA, and NASA
amend 48 CFR part 31 as set forth
below:
I
PART 31–CONTRACT COST
PRINCIPLES AND PROCEDURES
1. The authority citation for 48 CFR
part 31 continues to read as follows:
I
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 42 U.S.C. 2473(c).
2. Revise section 31.205–44 to read as
follows:
I
31.205–44
Training and education costs.
Costs of training and education that
are related to the field in which the
employee is working or may reasonably
be expected to work are allowable,
except as follows:
(a) Overtime compensation for
training and education is unallowable.
(b) The cost of salaries for attending
undergraduate level classes or part-time
graduate level classes during working
hours is unallowable, except when
unusual circumstances do not permit
attendance at such classes outside of
regular working hours.
(c) Costs of tuition, fees, training
materials and textbooks, subsistence,
salary, and any other payments in
connection with full-time graduate level
education are unallowable for any
portion of the program that exceeds two
school years or the length of the degree
program, whichever is less.
(d) Grants to educational or training
institutions, including the donation of
facilities or other properties,
scholarships, and fellowships are
considered contributions and are
unallowable.
(e) Training or education costs for
other than bona fide employees are
unallowable, except that the costs
incurred for educating employee
dependents (primary and secondary
E:\FR\FM\30SER4.SGM
30SER4
Federal Register / Vol. 70, No. 189 / Friday, September 30, 2005 / Rules and Regulations
level studies) when the employee is
working in a foreign country where
suitable public education is not
available may be included in overseas
differential pay.
(f) Contractor contributions to college
savings plans for employee dependents
are unallowable.
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Chapter 1
[FR Doc. 05–19478 Filed 9–29–05; 8:45 am]
Federal Acquisition Regulation; Small
Entity Compliance Guide
BILLING CODE 6820–EP–S
AGENCIES: Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Small Entity Compliance Guide.
This document is issued
under the joint authority of the
Secretary of Defense, the Administrator
of General Services and the
Administrator for the National
Aeronautics and Space Administration.
SUMMARY:
This Small Entity Compliance Guide
has been prepared in accordance with
Section 212 of the Small Business
Regulatory Enforcement Fairness Act of
1996. It consists of a summary of rules
appearing in Federal Acquisition
Circular (FAC) 2005–06 which amend
the FAR. An asterisk (*) next to a rule
indicates that a regulatory flexibility
analysis has been prepared. Interested
parties may obtain further information
regarding these rules by referring to FAC
2005–06 which precedes this document.
These documents are also available via
the Internet at https://www.acqnet.gov/
far.
FOR FURTHER INFORMATION CONTACT:
Laurieann Duarte, FAR Secretariat, (202)
501–4755. For clarification of content,
contact the analyst whose name appears
in the table below.
List of Rules in FAC 2005–06
Item
Subject
*I ...........
II ...........
III ..........
*IV ........
V ...........
*VI ........
Information Technology Security (Interim) ..........................................................................................
Improvements in Contracting for Architect-EngineerServices ............................................................
Title 40 of United States Code Reference Corrections ......................................................................
Implementation of the Anti-Lobbying Statute ......................................................................................
Increased Justification and Approval Threshold forDOD, NASA, and Coast Guard ..........................
Addition of Landscaping and Pest Control Services to theSmall Business Competitiveness Demonstration Program.
Powers of Attorney for Bid Bonds .......................................................................................................
Expiration of the Price Evaluation Adjustment(Interim) ......................................................................
Accounting for Unallowable Costs ......................................................................................................
Reimbursement of Relocation Costs on a Lump-Sum Basis .............................................................
Training and Education Cost Principle ................................................................................................
*VII .......
*VIII ......
IX ..........
X ...........
XI ..........
SUPPLEMENTARY INFORMATION:
Summaries for each FAR rule follow.
For the actual revisions and/or
amendments to these FAR cases, refer to
the specific item number and subject set
forth in the documents following these
item summaries.
FAC 2005–06 amends the FAR as
specified below:
*Item I—Information Technology
Security (FAR Case 2004–018)
This interim rule amends the FAR to
implement the Information Technology
(IT) Security provisions of the Federal
Information Security Management Act
of 2002 (FISMA) (Title III of the EGovernment Act of 2002 (E-Gov Act)).
This interim rule focuses on the
importance of system and data security
by contracting officials and other
members of the acquisition team. The
intent of adding specific guidance in the
FAR is to provide clear, consistent
guidance to acquisition officials and
program managers; and to encourage
and strengthen communication with IT
security officials, chief information
officers, and other affected parties.
VerDate Aug<31>2005
17:16 Sep 29, 2005
Jkt 205001
57473
FAR case
Analyst
2004–018
2004–001
2005–010
1989–093
2004–037
2004–036
Davis.
Davis.
Zaffos.
Woodson.
Jackson.
Marshall.
2003–029
2005–002
2004–006
2003–002
2001–021
Davis.
Cundiff.
Olson.
Olson.
Olson.
Item II—Improvements in Contracting
for Architect-Engineer Services (FAR
Case 2004–001)
Item III—Title 40 of United States Code
Reference Corrections (FAR Case 2005–
010)
This final rule implements Section
1427(b) of the Services Acquisition
Reform Act of 2003, which prohibits
architect-engineering services from
being offered under GSA multipleaward schedule contracts or under
Governmentwide task and delivery
order contracts unless they are awarded
using the procedures of the Brooks
Architect-Engineer Act and the services
are performed under the direct
supervision of a professional architect
or engineer licensed, registered, or
certified in the State, Federal district or
outlying area, in which the services are
to be performed. This rule is of interest
to agencies and contracting officers that
use GSA schedules and
Governmentwide task and delivery
order contracts.
This final rule amends the FAR to
reflect the most recent codification of
Title 40 of the United States Code. No
substantive changes are being made to
the FAR.
PO 00000
Frm 00027
Fmt 4701
Sfmt 4700
*Item IV—Implementation of the AntiLobbying Statute (FAR Case 1989–093)
This final rule converts the interim
rule published in the Federal Register at
55 FR 3190, January 30, 1990 to a final
rule with minor changes amends the
FAR to implement section 319 of the
Department of the Interior and Related
Agencies Appropriations Act, Public
Law 101–121, which added a new
section 1352 to Title 31 of the United
States Code, entitled ‘‘Limitations on
the use of funds to influence certain
Federal contracting and financial
transactions.’’ Section 319 generally
prohibits recipients of Federal contracts,
grants, and loans from using
appropriated funds for lobbying the
executive or legislative branches of the
E:\FR\FM\30SER4.SGM
30SER4
]]>Agencies
[Federal Register Volume 70, Number 189 (Friday, September 30, 2005)]
[Rules and Regulations]
[Pages 57470-57473]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-19478]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 31
[FAC 2005-06; FAR Case 2001-021; Item XI]
RIN 9000-AJ38
Federal Acquisition Regulation; Training and Education Cost
Principle
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on a final rule
amending the Federal Acquisition Regulation (FAR) by revising the
``training and education costs'' contract cost principle. The amendment
streamlines the cost principle and increases clarity by eliminating
restrictive and confusing language, and by restructuring the rule to
list only specifically unallowable costs. The final rule eliminates
several specific limitations on the allowability of costs associated
with the various categories of education, eliminates the disparate
treatment of full-time and part-time undergraduate education costs, and
limits allowable costs to training and education related to the field
in which the employee is working or may reasonably be expected to work.
The rule makes job-related training and education costs generally
allowable, except for six public policy exceptions that are retained
from the current cost principle. Except for the six expressly
unallowable cost exceptions, the reasonableness of specific contractor
training and education costs is assessed by reference to the FAR
section entitled ``Determining reasonableness.''
DATES: Effective Date: October 31, 2005.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat at (202) 501-4755
for information pertaining to status or publication schedules. For
clarification of content, contact Mr. Jerry Olson at (202) 501-3221.
Please cite FAC 2005-06, FAR case 2001-021.
SUPPLEMENTARY INFORMATION:
A. Background
The Councils published a proposed FAR rule in the Federal Register
(67 FR 34810) on May 15, 2002, with a request for comments by July 15,
2002. On June 11, 2002, an amendment was published in the Federal
Register (67 FR 40136) to correct an error in the Supplementary
Information section accompanying the proposed rule. Six respondents
submitted public comments. As a result of the comments received, the
Councils made significant changes to the proposed FAR rule and
published a second proposed FAR rule in the Federal Register (69 FR
4436) on January 29, 2004, with a request for comments by March 29,
2004.
Nine respondents submitted comments in response to the second
proposed FAR rule. A discussion of these public comments is provided
below. The Councils considered all comments and concluded that the
proposed rule should be converted to a final rule, with changes to the
proposed rule. Differences between the second proposed rule and final
rule are discussed in Section B, Comments 1, 2, 4, and 6, below.
B. Public Comments
Proposed paragraph (a): Education for sole purpose to obtain academic
degree or qualify for job.
Comment 1: Seven respondents generally supported the proposed rule;
however, they strongly recommended that proposed paragraph (a) be
deleted before issuing a final rule. Several of the respondents pointed
out that paragraph (a) is inconsistent with the Councils' own Federal
Register comments that they ``support upward mobility, job retraining,
and educational advancement.'' In this regard, one respondent stated
its concern that paragraph (a) would prevent it from providing ``the
educational opportunities that we have provided for decades.'' Some
respondents complained that it had ``no idea how one is to discern
whether the training and education relates `solely' to obtaining an
academic degree or to a particular position'' and that ``implementation
of this provision will be burdensome and lead to contested costs;
hardly a simplification that increases the clarity of the cost
principle.''
Several respondents challenged the fundamental notion that the
allowability of contractor employee training and education costs must
parallel exactly the treatment afforded Federal employees. One
respondent wrote--
``We believe that utilization of the test of whether the Federal
Government is willing to reimburse education costs for Federal
employees is an inappropriate basis for determining cost
allowability. The
[[Page 57471]]
benchmark for measuring the cost reasonableness of payments for
education and training should be based on commercial practices that
encourage the continued training and education of our workforce.
Accordingly, we recommend that paragraph 31.205-44(a) of the
proposed rule ... be deleted prior to issuing the final rule.''
To further support this position, another respondent pointed out
that Congress has long advocated increased use of commercial practices
in the Federal acquisition process:
``Congress has consistently endorsed and supported the adoption
of commercial practices--not Government practices--in the Government
procurement arena. The most recent example is the 2004 DoD
Authorization Legislation (P.L. 108-136), Section 1423. This section
prescribes the establishment of a panel to propagate the use of
commercial practices by, among other things, reviewing all
regulations.''
One respondent stated that the proposed paragraph (a) ``will
decrease industry's ability to assist the U.S. Government in ensuring
future economic strength'' through private sector training and
education which often involves employees ``in Government-authorized,
socioeconomic/disadvantaged programs that encourage upward mobility.''
In support of this assessment, the respondent provided a detailed
description of the benefits that accrue to the company, the Government,
and society in general from its Employee Scholar Program (ESP):
``There are over 9,000 U.S. employees (approximately 25% of whom
are hourly workers) currently participating in respondent's ESP.
These people are pursuing degrees from colleges and universities
that many undoubtedly could not have afforded to fund on their own.
ESP is encouraging educational pursuits that support social,
political, and business needs, for example:
Approximately 40% of the respondent's employees
participating from the aerospace and defense business units in the
ESP are obtaining first degrees;
Over 80% of the degrees awarded to the respondent's
employees from the aerospace and defense business units over the
last 3 years are in the business/management or technical/engineering
areas (less than 3% of degrees awarded were not in current or
possible future job-related areas);
Female and Hispanic employees participate in the ESP at
about 11/2 times their proportion in the respondent's workforce;
ESP participants have increased loyalty and motivation
to remain with the respondent. They leave their jobs at a lower rate
than the general population, thereby enhancing retention and
reducing allowable recruiting, relocation, and job training costs;
ESP graduates are promoted at a higher rate than the
general population;
The average age of a ESP participant is 39 years old
(suggesting that most participants are of an age where they are able
to use their education on the job, and seek further education in the
future to keep their skills current).''
Finally, one respondent summarized the confusion expressed by
several respondents over the purpose and effect of the proposed
paragraph (a):
``However, we are troubled by the statement in the comment
section that the Councils' intent is also to ''... make it (the
rule) consistent with recent statutory changes that cover the
payment of costs for Federal employee academic degree training.''
This statement and the resulting proposed paragraph 31.205-44(a)
nullify the benefits of simplification and adopting commercial
practices. We are perplexed as to how the costs for allowing and
encouraging employees to obtain degrees and take classes to provide
for future opportunities is against public policy and how these
costs potentially could be classified as unallowable.''
Councils' response: The Councils agree that the allowability of
contractor employee training and education costs, to the extent that it
is job related, should be rooted in sound commercial practices that
encourage upward mobility in the private sector workforce. The Councils
also are acutely sensitive to the concern about the appearance of
disparate treatment of contractor and Federal employees' full-time
undergraduate level educational expenses. Therefore, the Councils
carefully examined the comments of the largest Federal employee union,
the American Federation of Government Employees (AFGE), and noted that
the inclusion of the statutory limitations on agency payment of Federal
employee educational costs in paragraph (a) apparently did little to
temper the union's strong opposition to the proposed rule. Instead,
AFGE focused its criticism primarily on the lack therein of a job-
relatedness requirement for allowable contractor employee full-time
undergraduate educational costs, while it asserted that a demonstration
of job-relatedness would be essential before the Government would pay
these expenses for a Federal employee (see Comment 6, below).
Accordingly, the Councils have deleted the proposed paragraph (a) and
added the following allowability requirement for all training and
education costs in the introductory sentence of the final rule: ``Costs
of training and education that are related to the field in which the
employee is working or may reasonably be expected to work are
allowable, except as follows:'' The Councils believe that this broad
accommodation of AFGE's principal criticism of the proposed rule
constitutes sound public policy.
Proposed paragraph (d): Full-time graduate level education.
Comment 2: Three respondents expressed concern that the proposed
paragraph (d) would make currently allowable full-time graduate level
educational costs unallowable. They pointed out that under the current
coverage for such education, only the costs in excess of two years or
the length of the graduate degree program, whichever is less, are
unallowable. They argued that, in contrast, the proposed paragraph (d)
would make the entire cost (not just the excess) of the graduate
program unallowable if it exceeded two years or the length of the
degree program.
Councils' response: Concur. There was never any intent to change
this aspect of the current allowability criteria for full-time graduate
level educational costs. Accordingly, the Councils have revised this
coverage (now paragraph (c) of the final rule) to clarify that only the
costs in excess of two school years or the length of the degree
program, whichever is less, are unallowable.
Proposed paragraph (e): Grants.
Comment 3: Two respondents recommended that the proposed paragraph
(e) on grants to educational or training institutions be deleted
``because this subject matter is adequately covered by FAR 31.205-8,
Contributions or donations.''
Councils' response: Nonconcur. The Councils believe that the
proposed paragraph (e) (which is essentially the same as the current
paragraph (g), Grants) provides very helpful guidance regarding
specific types of unallowable grants to educational or training
institutions which should be retained. To avoid confusion, the Councils
have also added back the explanatory words ``are considered
contributions and'' from the current paragraph (g) to this provision
(now paragraph (d) of the final rule).
Proposed paragraph (g): Employee dependents college savings plans.
Comment 4: Three respondents expressed concern that the proposed
paragraph (g), which makes costs of university and college plans for
employee dependents unallowable, could be misinterpreted to make the
administrative costs of such plans unallowable. One of the respondents
suggested changing the words ``Costs of'' to ``Contractor contributions
to'' to clarify the intent of this provision.
Councils' response: Concur. The Federal Register notice
accompanying
[[Page 57472]]
the January 29, 2004, proposed rule provided the following response to
essentially this same industry concern:
``The cost principle does not address the administrative costs
of such plans; therefore, the administrative costs are allowable,
subject to the reasonableness criteria at FAR 31.201-3. However, any
contributions to the plan by the company for employee dependents
would be unallowable under the redesignated paragraph (g) in this
second proposed rule.''
Even though the Councils are unaware of any problems involving the
misapplication of this provision to the administrative costs of college
savings plans, they see no problem in making the suggested clarifying
change. As stated above, the intent of the proposed paragraph (g)
(which is the same as that of the current paragraph (j), Employee
dependent education plans) is to make contractor contributions to
college savings plans for employee dependents unallowable. Reasonable
administrative costs for college savings plans funded by employee
contributions should continue to be allowable. In revising this
provision (now paragraph (f) of the final rule), the Councils have also
used the appropriate financial planning term, ``college savings
plans.''
Current paragraph (h): Advance agreements.
Comment 5: Two respondents argued that in view of the potential
changes in the allowability of full-time graduate level educational
costs in the proposed paragraph (d), it is necessary to retain the
current paragraph (h), Advance agreements, in order to keep currently
allowable costs from becoming unallowable. This is because the current
paragraph (h) permits advance agreements that would make costs
allowable ``in excess of those otherwise allowable under paragraphs (c)
and (d)'' of the current cost principle.
Councils' response: Nonconcur. Since the Councils have revised the
coverage for full-time graduate level educational costs in the final
rule to prevent a possible ``all or nothing'' interpretation (see
Comment 2, above), this should no longer be a concern for industry.
Job-relatedness.
Comment 6: In opposing the proposed rule, one respondent
categorized it as ``another attempt on the part of the Director of
Procurement and Acquisition Policy at DoD to accord contractors and
contractor employees further benefits not granted to Federal employees
in similar circumstances.'' Continuing that theme, the respondent
expressed its principal criticism of the proposed rule as follows:
``The proposed rule makes at least one extremely offensive
change to the contract cost allowability rules that is not accorded
to Federal employees, despite the misleading statement contained in
the proposal's preamble. Permitting contractors to claim as an
allowable cost, the costs of providing employees with full-time
undergraduate education, amounts to nothing more than a contractor
scholarship program, at taxpayer expense. While the respondent, as a
matter of public policy, encourages Federal employees to further
their education and training, it is well understood, that when
taxpayers pick up these costs, such education and training must
reasonably relate to the employee's actual or anticipated duties.''
Councils' response: Partially concur. The Councils see significant
benefits to both the Government and industry in publishing the final
rule in this case. However, the Councils agree with the respondent that
job-relatedness should be a requirement for allowable contractor
employee full-time undergraduate level educational costs. In fact, the
Councils have added such an allowability requirement for all training
and education costs in the introductory sentence of the recommended
final rule (see Comment 1, above). The Councils believe this change
constitutes sound public policy.
Applicability to Federal employees.
Comment 7: One respondent stated ``The combination of training and
education for the 1102 series is critical, without the Government
paying for the required courses and training, most employees could not
afford to get the degree required.'' The respondent concluded with the
request to ``Please reconsider and completely fund the education and
training of current employees.''
Councils' response: The respondent apparently confused the proposed
rule as applying to Federal employees. The proposed rule does not apply
to Federal employees.
C. Regulatory Planning and Review
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
D. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because most contracts awarded
to small entities use simplified acquisition procedures or are awarded
on a competitive, fixed-price basis and do not require application of
the cost principle discussed in this rule.
E. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose information collection requirements that require
the approval of the Office of Management and Budget under 44 U.S.C.
3501, et seq.
List of Subjects in 48 CFR Part 31
Government procurement.
Dated: September 22, 2005.
Julia B. Wise,
Director, Contract Policy Division.
0
Therefore, DoD, GSA, and NASA amend 48 CFR part 31 as set forth below:
PART 31-CONTRACT COST PRINCIPLES AND PROCEDURES
0
1. The authority citation for 48 CFR part 31 continues to read as
follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
0
2. Revise section 31.205-44 to read as follows:
31.205-44 Training and education costs.
Costs of training and education that are related to the field in
which the employee is working or may reasonably be expected to work are
allowable, except as follows:
(a) Overtime compensation for training and education is
unallowable.
(b) The cost of salaries for attending undergraduate level classes
or part-time graduate level classes during working hours is
unallowable, except when unusual circumstances do not permit attendance
at such classes outside of regular working hours.
(c) Costs of tuition, fees, training materials and textbooks,
subsistence, salary, and any other payments in connection with full-
time graduate level education are unallowable for any portion of the
program that exceeds two school years or the length of the degree
program, whichever is less.
(d) Grants to educational or training institutions, including the
donation of facilities or other properties, scholarships, and
fellowships are considered contributions and are unallowable.
(e) Training or education costs for other than bona fide employees
are unallowable, except that the costs incurred for educating employee
dependents (primary and secondary
[[Page 57473]]
level studies) when the employee is working in a foreign country where
suitable public education is not available may be included in overseas
differential pay.
(f) Contractor contributions to college savings plans for employee
dependents are unallowable.
[FR Doc. 05-19478 Filed 9-29-05; 8:45 am]
BILLING CODE 6820-EP-S
