Federal Acquisition Regulation; FAR Case 2007-021, Fair Labor Standards Act and Service Contract Act Price Adjustment Clauses, 872-874 [E9-217]
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872
Federal Register / Vol. 74, No. 6 / Friday, January 9, 2009 / Proposed Rules
Dated: November 18, 2008.
Gary Klein,
Associate Administrator.
§ 102–192.60 If my agency spends less
than $1 million per year on postage and has
already converted to commercial payment
processes, are we responsible for selecting
one of the additional options?
For the reasons set forth in the
preamble, GSA proposes to amend 41
CFR part 102–192 as set forth below:
PART 102–192—MAIL MANAGEMENT
1. The authority citation for 41 CFR
part 102–192 continues to read as
follows:
Authority: 44 U.S.C. 2904; 40 U.S.C.
121(c).
§ 102–192.65 If my agency still wants to
implement the commercial payment
process, how do we do so?
2. Revise Subpart B of 41 CFR part
102–192 to read as follows:
Subpart B—Financial Requirements for
All Agencies
§ 102–192.50 What payment processes are
we required to use?
All payments to all service providers
must be made through a process that
ensures accountability to the program
level, as defined in § 102–192.55.
yshivers on PROD1PC62 with PROPOSALS
§ 102–192.55 What options are available to
show accountability?
(a) Your agency must show
accountability by using at least two of
the following methods:
(1) Implement or continue using
commercial payment processes.
(2) Show quantified dollar savings in
mail costs that result from management
action, with a clear explanation of how
the savings were achieved. Dollar
savings must be recent, defined as
occurring within the last five fiscal
years. That is, after five fiscal years,
additional information about how the
agency has achieved recent savings and/
or will continue to achieve dollar
savings will be required in the annual
mail management report.
(3) Provide a detailed breakdown of
all agency mail costs.
(4) Provide names, responsibility
areas, and mail costs for program
officials who are accountable for 75
percent (or more) of the agency’s
postage.
(5) Provide cost-per-piece data for at
least 75 percent of all outgoing mail.
(b) Agencies that spend more than $1
million per year on postage must
describe how they are showing
accountability by responding fully,
beginning with the Fiscal Year 2009
report, to the questions on
accountability in the annual report
format. Agencies that do not respond
fully or whose responses do not, in the
judgment of the GSA Office of
Governmentwide Policy, meet the
standard established in this paragraph,
will be considered out of compliance
with this regulation.
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Any agency that spends less than $1
million on postage per year and has
already successfully converted to
commercial payment is in compliance
with this regulation and does not need
to select any additional options
presented in § 102–192.55.
Guidance on implementing a
compliant payment process is in the
GSA Policy Advisory, Guidelines for
Federal Agencies on Converting to
Commercial Payment Systems for
Postage, which can be found at https://
www.gsa.gov/mailpolicy.
3. Amend § 102–192.90 by revising
paragraph (f) read as follows:
§ 102–192.90 What must we include in our
annual mail management report to GSA?
*
*
*
*
*
(f) Describe how your agency is
ensuring accountability for postage by
identifying which two of the five
methods (see § 102–192.55) you use to
meet this objective and explaining in
detail how these two apply to your
agency.
*
*
*
*
*
[FR Doc. E9–172 Filed 1–8–09; 8:45 am]
BILLING CODE 6820–14–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 22 and 52
[FAR Case 2007–021; Docket 2009-0014;
Sequence 1]
RIN 9000–AL14
Federal Acquisition Regulation; FAR
Case 2007–021, Fair Labor Standards
Act and Service Contract Act Price
Adjustment Clauses
AGENCIES: Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Proposed rule.
SUMMARY: The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) are proposing to amend the
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Fmt 4702
Sfmt 4702
Federal Acquisition Regulation (FAR) to
specifically require the incorporation of
the FAR clauses regarding Fair Labor
Standards Act and Service Contract ActPrice Adjustment (Multi-Year and
Option Contracts) and Fair Labor
Standards Act and Service Contract ActPrice Adjustment in time-and-materials
and labor—hour service contracts that
are subject to the Service Contract Act.
DATES: Interested parties should submit
written comments to the Regulatory
Secretariat on or before March 10, 2009
to be considered in the formulation of
a final rule.
ADDRESSES: Submit comments
identified by FAR case 2007–021 by any
of the following methods:
• Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
inputting ‘‘FAR Case 2007–021’’ under
the heading ‘‘Comment or Submission’’.
Select the link ‘‘Send a Comment or
Submission’’ that corresponds with FAR
Case 2007–021. Follow the instructions
provided to complete the ‘‘Public
Comment and Submission Form’’.
Please include your name, company
name (if any), and ‘‘FAR Case 2007–
021’’ on your attached document.
• Fax: 202–501–4067.
• Mail: General Services
Administration, Regulatory Secretariat
(VPR), 1800 F Street, NW, Room 4035,
ATTN: Hada Flowers, Washington, DC
20405.
Instructions: Please submit comments
only and cite FAR case 2007–021 in all
correspondence related to this case. All
comments received will be posted
without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided.
FOR FURTHER INFORMATION CONTACT Ms.
Meredith Murphy, Procurement
Analyst, at (202) 208–6925 for
clarification of content. For information
pertaining to status or publication
schedules, contact the Regulatory
Secretariat at (202) 501–4755. Please
cite FAR case 2007–021.
SUPPLEMENTARY INFORMATION:
A. Background
This rule proposes to amend the
Federal Acquisition Regulation (FAR) to
revise the clause prescriptions at FAR
22.1006(c)(1) and (2) to specifically
require that time-and-materials and
labor-hour service contracts subject to
the Service Contract Act contain the
appropriate price adjustment clauses set
forth at 52.222–43 and 52.222–44.
Despite the current prescriptions
which do not require use of the clauses
in time-and-materials or labor-hour
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Federal Register / Vol. 74, No. 6 / Friday, January 9, 2009 / Proposed Rules
yshivers on PROD1PC62 with PROPOSALS
contracts, there is, in fact, broad usage
of the clause(s) in such contracts.
Adoption of the proposed change would
achieve consistency throughout the
Government acquisition community and
resolve potential inequities where the
clauses have not been applied. Not only
would this achieve an equitable result
for contractors, but it would also allow
the Government to avoid use of other
means of adjusting contract unit price
labor rates which may be more costly to
the Government. Other means of
adjusting contract labor rates, such as
allowing for wage/benefit escalation,
equitable adjustment or economic price
adjustment, would likely include profit,
overhead and general and
administrative expenses. The clauses at
52.222–43 and 52.222–44 explicitly
exclude these additional costs.
The clause prescriptions at FAR
22.1006(c)(1) and (c)(2) currently
require that Service Contract Act wage
determination updates be applied to
contracts subject to the clause at
52.222–41, Service Contract Act of 1965,
but, as required by FAR clause 52.222–
41, minimum monetary wages and
fringe benefits to be paid to service
employees under the contract may be
subject to adjustment, under wage
determinations issued by the
Department of Labor. While there may
be other means permitted to adjust fixed
labor rates on time-and-materials or
labor-hour contracts, those other means
will not achieve the consistent results
that use of the Service Contract Act
price adjustment clause(s) will achieve.
Requirement by the prescription for the
clauses will achieve that consistency
and at the same time will allow the
Government to avoid any adjustment to
profit, overhead or general and
administrative costs that could be
incurred in addition to wage or fringe
benefit costs increases.
The proposed rule requires
Government time-and-materials and
labor-hour service contracts to
incorporate the appropriate price
adjustment clauses.
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.
B. Regulatory Flexibility Act
The Councils do not expect this
proposed rule to 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 it
merely clarifies the existing
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15:07 Jan 08, 2009
Jkt 217001
prescriptions relating to service
contracts. FAR clause 52.222–41
requires contractors to comply with
wage determinations of the Department
of Labor and may require adjustment to
wage rates during the term of the
contract. Most contracts that include
this clause therefore provide some
mechanism for dealing with the
potential required price adjustment. The
Councils have been advised that use of
these clauses for time-and-materials and
labor-hour service contracts is already
widespread. Uniform use of the
appropriate clause will ensure
consistency in the adjustment method
for any required increase in wage rate,
but should not have a significant cost
impact.
An Initial Regulatory Flexibility
Analysis has, therefore, not been
performed. We invite comments from
small businesses and other interested
parties. The Councils will consider
comments from small entities
concerning the affected FAR Parts 22
and 52 in accordance with 5 U.S.C. 610.
Interested parties must submit such
comments separately and should cite 5
U.S.C. 601, et seq. (FAR case 2007–021),
in all correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does
not apply because the proposed 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 Parts 22 and
52
Government procurement.
Dated: December 9, 2008.
Al Matera,
Director, Office of Acquisition Policy.
Therefore, DoD, GSA, and NASA
propose amending 48 CFR parts 22 and
52 as set forth below:
1. The authority citation for 48 CFR
parts 22 and 52 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).
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
52.212–5
[Amended]
3. Amend section 52.212–5 by
removing the date of the clause and
adding ‘‘(DATE)’’ in its place; by
removing from paragraph (c)(3) ‘‘(Nov
2006)’’ and adding ‘‘(Date)’’ in its place;
and by removing from paragraph (c)(4)
‘‘(Feb 2002)’’ and adding ‘‘(Date)’’ in its
place.
4. Amend section 52.222–43 by
revising the date of the clause,
paragraph (d), and the third and fourth
sentences of paragraph (f) to read as
follows:
52.222–43 Fair Labor Standards Act and
Service Contract Act—Price Adjustment
(Multiple Year and Option Contracts).
*
*
*
*
*
*
*
(d) The contract price, contract unit
price labor rates, or fixed hourly labor
rates will be adjusted to reflect the
Contractor’s actual increase or decrease
in applicable wages and fringe benefits
to the extent that the increase is made
to comply with or the decrease is
voluntarily made by the Contractor as a
result of—
*
*
*
*
*
(f) * * * The notice shall contain a
statement of the amount claimed and
the change in fixed hourly rates (if this
is a time-and-materials or labor-hour
contract), and any relevant supporting
data, including payroll records, that the
Contracting Officer may reasonably
require. Upon agreement of the parties,
the contract price, contract unit price
labor rates, or fixed hourly rates shall be
modified in writing. * * *
*
*
*
*
*
(End of clause)
5. Amend section 52.222–44 by
revising the date of the clause,
paragraph (c), and the third and fourth
sentences of paragraph (e) to read as
follows:
52.222–44 Fair Labor Standards Act and
Service Contract Act—Price Adjustment.
*
22.1006
*
2. Amend section 22.1006 by
removing from paragraphs (c)(1) and
(c)(2) ‘‘fixed-price’’ and adding ‘‘fixedprice, time-and-materials, or laborhour’’ in its place.
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*
*
PART 22—APPLICATION OF LABOR
LAWS TO GOVERNMENT
ACQUISITIONS
[Amended]
*
FAIR LABOR STANDARDS ACT AND
SERVICE CONTRACT ACT—PRICE
ADJUSTMENT (MULTIPLE YEAR AND
OPTION CONTRACTS) (DATE)
*
*
*
*
FAIR LABOR STANDARDS ACT AND
SERVICE CONTRACT ACT—PRICE
ADJUSTMENT (DATE)
*
*
*
*
(c) The contract price, contract unit
price labor rates, or fixed hourly labor
rates will be adjusted to reflect increases
or decreases by the Contractor in wages
and fringe benefits to the extent that
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874
Federal Register / Vol. 74, No. 6 / Friday, January 9, 2009 / Proposed Rules
yshivers on PROD1PC62 with PROPOSALS
these increases or decreases are made to
comply with—
*
*
*
*
*
(e) * * * The notice shall contain a
statement of the amount and the change
in fixed hourly rates (if this is a time-
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15:07 Jan 08, 2009
Jkt 217001
and-materials or labor-hour contract)
claimed and any relevant supporting
data that the Contracting Officer may
reasonably require. Upon agreement of
the parties, the contract price, contract
unit price labor rates, or fixed hourly
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Fmt 4702
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rates shall be modified
in writing. * * *
*
*
*
*
*
(End of clause)
[FR Doc. E9–217 Filed 1–8–09; 8:45 am]
BILLING CODE 6820–EP–S
E:\FR\FM\09JAP1.SGM
09JAP1
]]>Agencies
[Federal Register Volume 74, Number 6 (Friday, January 9, 2009)]
[Proposed Rules]
[Pages 872-874]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-217]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 22 and 52
[FAR Case 2007-021; Docket 2009-0014; Sequence 1]
RIN 9000-AL14
Federal Acquisition Regulation; FAR Case 2007-021, Fair Labor
Standards Act and Service Contract Act Price Adjustment Clauses
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are proposing to amend the
Federal Acquisition Regulation (FAR) to specifically require the
incorporation of the FAR clauses regarding Fair Labor Standards Act and
Service Contract Act-Price Adjustment (Multi-Year and Option Contracts)
and Fair Labor Standards Act and Service Contract Act-Price Adjustment
in time-and-materials and labor--hour service contracts that are
subject to the Service Contract Act.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat on or before March 10, 2009 to be considered in
the formulation of a final rule.
ADDRESSES: Submit comments identified by FAR case 2007-021 by any of
the following methods:
Regulations.gov: https://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by inputting ``FAR Case
2007-021'' under the heading ``Comment or Submission''. Select the link
``Send a Comment or Submission'' that corresponds with FAR Case 2007-
021. Follow the instructions provided to complete the ``Public Comment
and Submission Form''. Please include your name, company name (if any),
and ``FAR Case 2007-021'' on your attached document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (VPR), 1800 F Street, NW, Room 4035, ATTN: Hada Flowers,
Washington, DC 20405.
Instructions: Please submit comments only and cite FAR case 2007-
021 in all correspondence related to this case. All comments received
will be posted without change to https://www.regulations.gov, including
any personal and/or business confidential information provided.
FOR FURTHER INFORMATION CONTACT Ms. Meredith Murphy, Procurement
Analyst, at (202) 208-6925 for clarification of content. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at (202) 501-4755. Please cite FAR case 2007-
021.
SUPPLEMENTARY INFORMATION:
A. Background
This rule proposes to amend the Federal Acquisition Regulation
(FAR) to revise the clause prescriptions at FAR 22.1006(c)(1) and (2)
to specifically require that time-and-materials and labor-hour service
contracts subject to the Service Contract Act contain the appropriate
price adjustment clauses set forth at 52.222-43 and 52.222-44.
Despite the current prescriptions which do not require use of the
clauses in time-and-materials or labor-hour
[[Page 873]]
contracts, there is, in fact, broad usage of the clause(s) in such
contracts. Adoption of the proposed change would achieve consistency
throughout the Government acquisition community and resolve potential
inequities where the clauses have not been applied. Not only would this
achieve an equitable result for contractors, but it would also allow
the Government to avoid use of other means of adjusting contract unit
price labor rates which may be more costly to the Government. Other
means of adjusting contract labor rates, such as allowing for wage/
benefit escalation, equitable adjustment or economic price adjustment,
would likely include profit, overhead and general and administrative
expenses. The clauses at 52.222-43 and 52.222-44 explicitly exclude
these additional costs.
The clause prescriptions at FAR 22.1006(c)(1) and (c)(2) currently
require that Service Contract Act wage determination updates be applied
to contracts subject to the clause at 52.222-41, Service Contract Act
of 1965, but, as required by FAR clause 52.222-41, minimum monetary
wages and fringe benefits to be paid to service employees under the
contract may be subject to adjustment, under wage determinations issued
by the Department of Labor. While there may be other means permitted to
adjust fixed labor rates on time-and-materials or labor-hour contracts,
those other means will not achieve the consistent results that use of
the Service Contract Act price adjustment clause(s) will achieve.
Requirement by the prescription for the clauses will achieve that
consistency and at the same time will allow the Government to avoid any
adjustment to profit, overhead or general and administrative costs that
could be incurred in addition to wage or fringe benefit costs
increases.
The proposed rule requires Government time-and-materials and labor-
hour service contracts to incorporate the appropriate price adjustment
clauses.
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.
B. Regulatory Flexibility Act
The Councils do not expect this proposed rule to 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 it merely clarifies the existing prescriptions relating to
service contracts. FAR clause 52.222-41 requires contractors to comply
with wage determinations of the Department of Labor and may require
adjustment to wage rates during the term of the contract. Most
contracts that include this clause therefore provide some mechanism for
dealing with the potential required price adjustment. The Councils have
been advised that use of these clauses for time-and-materials and
labor-hour service contracts is already widespread. Uniform use of the
appropriate clause will ensure consistency in the adjustment method for
any required increase in wage rate, but should not have a significant
cost impact.
An Initial Regulatory Flexibility Analysis has, therefore, not been
performed. We invite comments from small businesses and other
interested parties. The Councils will consider comments from small
entities concerning the affected FAR Parts 22 and 52 in accordance with
5 U.S.C. 610. Interested parties must submit such comments separately
and should cite 5 U.S.C. 601, et seq. (FAR case 2007-021), in all
correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
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 Parts 22 and 52
Government procurement.
Dated: December 9, 2008.
Al Matera,
Director, Office of Acquisition Policy.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 22 and
52 as set forth below:
1. The authority citation for 48 CFR parts 22 and 52 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).
PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
22.1006 [Amended]
2. Amend section 22.1006 by removing from paragraphs (c)(1) and
(c)(2) ``fixed-price'' and adding ``fixed-price, time-and-materials, or
labor-hour'' in its place.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.212-5 [Amended]
3. Amend section 52.212-5 by removing the date of the clause and
adding ``(DATE)'' in its place; by removing from paragraph (c)(3)
``(Nov 2006)'' and adding ``(Date)'' in its place; and by removing from
paragraph (c)(4) ``(Feb 2002)'' and adding ``(Date)'' in its place.
4. Amend section 52.222-43 by revising the date of the clause,
paragraph (d), and the third and fourth sentences of paragraph (f) to
read as follows:
52.222-43 Fair Labor Standards Act and Service Contract Act--Price
Adjustment (Multiple Year and Option Contracts).
* * * * *
FAIR LABOR STANDARDS ACT AND SERVICE CONTRACT ACT--PRICE
ADJUSTMENT (MULTIPLE YEAR AND OPTION CONTRACTS) (DATE)
* * * * *
(d) The contract price, contract unit price labor rates, or fixed
hourly labor rates will be adjusted to reflect the Contractor's actual
increase or decrease in applicable wages and fringe benefits to the
extent that the increase is made to comply with or the decrease is
voluntarily made by the Contractor as a result of--
* * * * *
(f) * * * The notice shall contain a statement of the amount
claimed and the change in fixed hourly rates (if this is a time-and-
materials or labor-hour contract), and any relevant supporting data,
including payroll records, that the Contracting Officer may reasonably
require. Upon agreement of the parties, the contract price, contract
unit price labor rates, or fixed hourly rates shall be modified in
writing. * * *
* * * * *
(End of clause)
5. Amend section 52.222-44 by revising the date of the clause,
paragraph (c), and the third and fourth sentences of paragraph (e) to
read as follows:
52.222-44 Fair Labor Standards Act and Service Contract Act--Price
Adjustment.
* * * * *
FAIR LABOR STANDARDS ACT AND SERVICE CONTRACT ACT--PRICE
ADJUSTMENT (DATE)
* * * * *
(c) The contract price, contract unit price labor rates, or fixed
hourly labor rates will be adjusted to reflect increases or decreases
by the Contractor in wages and fringe benefits to the extent that
[[Page 874]]
these increases or decreases are made to comply with--
* * * * *
(e) * * * The notice shall contain a statement of the amount and
the change in fixed hourly rates (if this is a time-and-materials or
labor-hour contract) claimed and any relevant supporting data that the
Contracting Officer may reasonably require. Upon agreement of the
parties, the contract price, contract unit price labor rates, or fixed
hourly rates shall be modified in writing. * * *
* * * * *
(End of clause)
[FR Doc. E9-217 Filed 1-8-09; 8:45 am]
BILLING CODE 6820-EP-S
