Federal Acquisition Regulation; FAR Case 2007-021, Fair Labor Standards Act and Service Contract Act Price Adjustment Clauses, 40460-40461 [E9-19163]
Download as PDF
<![CDATA[
40460
Federal Register / Vol. 74, No. 153 / Tuesday, August 11, 2009 / Rules and Regulations
PART 5—PUBLICIZING CONTRACT
ACTIONS
DEPARTMENT OF DEFENSE
2. Amend section 5.102 by—
■ a. Revising paragraph (a)(4) and the
introductory text of paragraph (a)(5);
■ b. Removing paragraph (a)(5)(iii); and
■ c. Redesignating paragraph (a)(5)(iv)
as (a)(5)(iii).
■ The revised text reads as follows:
■
5.102
[Amended]
3. Amend section 5.207 by removing
from paragraph (c)(18) ‘‘FedTeDS
(https://www.fedteds.gov)’’ and adding
‘‘https://www.fedbizopps.gov’’ in its
place.
■
PART 7—ACQUISITION PLANNING
7.105
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 22 and 52
[FAC 2005–36; FAR Case 2007–021; Item
II; Docket 2009–0004; Sequence 2]
RIN 9000–AL14
Availability of solicitations.
(a) * * *
(4) When an agency determines that a
solicitation contains information that
requires additional controls to monitor
access and distribution (e.g., technical
data, specifications, maps, building
designs, schedules, etc.), the
information shall be made available
through the enhanced controls of the
GPE, unless an exception in paragraph
(a)(5) of this section applies. The GPE
meets the synopsis and advertising
requirements of this part.
(5) The contracting officer need not
make a solicitation available through the
GPE as required in paragraph (a)(4) of
this section, when—
*
*
*
*
*
5.207
GENERAL SERVICES
ADMINISTRATION
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: 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) to specifically require
the incorporation of FAR clauses
52.222–43, Fair Labor Standards Act
and Service Contract Act—Price
Adjustment (Multiple Year and Option
Contracts) and 52.222–44, Fair Labor
Standards Act and Service Contract
Act—Price Adjustment, in time-andmaterials and labor-hour service
contracts that are subject to the Service
Contract Act. No comments were
received in response to the proposed
rule.
DATES:
[Amended]
4. Amend section 7.105 by removing
from paragraph (b)(15) ‘‘Federal
Technical Data Solution (FedTeDS)’’
and adding ‘‘enhanced controls of the
GPE at https://www.fedbizopps.gov’’ in
its place.
■
[FR Doc. E9–19162 Filed 8–10–09; 8:45 am]
BILLING CODE 6820–EP–S
Effective Date: September 10,
2009.
FOR FURTHER INFORMATION CONTACT: For
clarification of content, contact Ms.
Meredith Murphy, Procurement
Analyst, at (202) 208–6925. For
information pertaining to status or
publication schedules, contact the
Regulatory Secretariat at (202) 501–
4755. Please cite FAC 2005–36, FAR
case 2007–021.
SUPPLEMENTARY INFORMATION:
srobinson on DSKHWCL6B1PROD with RULES5
A. Background
This final rule amends the 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 FAR 52.222–43 and 52.222–44.
DoD, GSA, and NASA published a
proposed rule in the Federal Register at
74 FR 872 on January 9, 2009.
VerDate Nov<24>2008
21:07 Aug 10, 2009
Jkt 217001
PO 00000
Frm 00004
Fmt 4701
Sfmt 4700
Despite the fact that the previous
prescriptions did not require use of the
clauses in time-and-materials or laborhour contracts, there was actually broad
usage of the clause(s) in such contracts.
This change will achieve consistency
throughout the Government acquisition
community and resolve potential
inequities where the clauses have not
been applied. It will achieve an
equitable result for contractors and will
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 FAR
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 FAR 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
do not achieve the consistent results
that use of the Service Contract Act
price adjustment clause(s) will achieve.
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 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 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
E:\FR\FM\11AUR5.SGM
11AUR5
Federal Register / Vol. 74, No. 153 / Tuesday, August 11, 2009 / Rules and Regulations
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.
C. 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. Chapter 35,
et seq.
List of Subjects in 48 CFR Parts 22 and
52
Government procurement.
Dated: August 4, 2009.
Al Matera,
Director, Office of Acquisition Policy.
Therefore, DoD, GSA, and NASA
amend 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).
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.
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
[Amended]
3. Amend section 52.212–5 by
removing from the date of the clause
‘‘(June 2009)’’ and adding ‘‘(Sep 2009)’’
in its place; by removing from paragraph
(c)(3) ‘‘(Nov 2006)’’ and adding ‘‘(Sep
2009)’’ in its place; and by removing
from paragraph (c)(4) ‘‘(Feb 2002)’’ and
adding ‘‘(Sep 2009)’’ in its place.
■ 4. Amend section 52.222–43 by
revising the date of the clause,
introductory text in paragraph (d), and
the third and fourth sentences of
paragraph (f) to read as follows:
srobinson on DSKHWCL6B1PROD with RULES5
VerDate Nov<24>2008
21:07 Aug 10, 2009
Jkt 217001
*
*
*
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
*
48 CFR Parts 22, 25, and 52
*
*
*
*
(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. * * *
*
*
*
*
*
■ 5. Amend section 52.222–44 by
revising the date of the clause,
introductory text of paragraph (c), and
the third and fourth sentences of
paragraph (e) to read as follows:
*
*
*
*
FAIR LABOR STANDARDS ACT AND
SERVICE CONTRACT ACT—PRICE
ADJUSTMENT (Sep 2009)
[Amended]
■
*
DEPARTMENT OF DEFENSE
FAIR LABOR STANDARDS ACT AND
SERVICE CONTRACT ACT—PRICE
ADJUSTMENT (MULTIPLE YEAR AND
OPTION CONTRACTS) (Sep 2009)
*
■
52.212–5
*
52.222–44 Fair Labor Standards Act and
Service Contract Act—Price Adjustment.
PART 22—APPLICATION OF LABOR
LAWS TO GOVERNMENT
ACQUISITIONS
22.1006
52.222–43 Fair Labor Standards Act and
Service Contract Act—Price Adjustment
(Multiple Year and Option Contracts).
40461
*
*
*
*
*
(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
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 timeand-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. * *
*
*
*
*
*
*
[FR Doc. E9–19163 Filed 8–10–09; 8:45 am]
BILLING CODE 6820–EP–S
PO 00000
Frm 00005
Fmt 4701
Sfmt 4700
[FAC 2005–36; FAR Case 2009–014; Item
III; Docket 2009–0027, Sequence 1]
RIN 9000–AL34
Federal Acquisition Regulation; FAR
Case 2009–014, New Designated
Country—Taiwan
AGENCIES: Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Interim rule with request for
comments.
SUMMARY: The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) have agreed on an interim
rule amending the Federal Acquisition
Regulation (FAR) to add Taiwan (known
in the World Trade Organization as ‘‘the
Separate Customs Territory of Taiwan,
Penghu, Kinmen and Matsu (Chinese
Taipei))’’ as a designated country, due to
the accession of Taiwan to membership
in the World Trade Organization
Agreement on Government
Procurement.
Effective Date: August 11, 2009.
Comment Date: Interested parties
should submit written comments to the
Regulatory Secretariat on or before
October 13, 2009 to be considered in the
formulation of a final rule.
ADDRESSES: Submit comments
identified by FAC 2005–36, FAR case
2009–014, by any of the following
methods:
• Regulations.gov: https://
www.regulations.gov.
Submit comments via the Federal
eRulemaking portal by inputting ‘‘FAR
Case 2009–014’’ under the heading
‘‘Comment or Submission’’. Select the
link ‘‘Send a Comment or Submission’’
that corresponds with FAR Case 2009–
014. Follow the instructions provided to
complete the ‘‘Public Comment and
Submission Form’’. Please include your
name, company name (if any), and
‘‘FAR Case 2009–014’’ on your attached
document.
• Fax: 202–501–4067.
• Mail: General Services
Administration, Regulatory Secretariat
(VPR), 1800 F Street, NW, Room 4041,
ATTN: Hada Flowers, Washington, DC
20405.
DATES:
E:\FR\FM\11AUR5.SGM
11AUR5
]]>Agencies
[Federal Register Volume 74, Number 153 (Tuesday, August 11, 2009)]
[Rules and Regulations]
[Pages 40460-40461]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-19163]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 22 and 52
[FAC 2005-36; FAR Case 2007-021; Item II; Docket 2009-0004; Sequence 2]
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: 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) to specifically
require the incorporation of FAR clauses 52.222-43, Fair Labor
Standards Act and Service Contract Act--Price Adjustment (Multiple Year
and Option Contracts) and 52.222-44, 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. No comments were received in response to the proposed rule.
DATES: Effective Date: September 10, 2009.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Meredith Murphy, Procurement Analyst, at (202) 208-6925. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-36, FAR
case 2007-021.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule amends the 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 FAR 52.222-43 and 52.222-44.
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 74 FR 872 on January 9, 2009.
Despite the fact that the previous prescriptions did not require
use of the clauses in time-and-materials or labor-hour contracts, there
was actually broad usage of the clause(s) in such contracts. This
change will achieve consistency throughout the Government acquisition
community and resolve potential inequities where the clauses have not
been applied. It will achieve an equitable result for contractors and
will 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 FAR 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 FAR 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 do not achieve the consistent results that use of the
Service Contract Act price adjustment clause(s) will achieve.
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 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 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
[[Page 40461]]
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.
C. 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.
Chapter 35, et seq.
List of Subjects in 48 CFR Parts 22 and 52
Government procurement.
Dated: August 4, 2009.
Al Matera,
Director, Office of Acquisition Policy.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 22 and 52 as set forth
below:
0
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]
0
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]
0
3. Amend section 52.212-5 by removing from the date of the clause
``(June 2009)'' and adding ``(Sep 2009)'' in its place; by removing
from paragraph (c)(3) ``(Nov 2006)'' and adding ``(Sep 2009)'' in its
place; and by removing from paragraph (c)(4) ``(Feb 2002)'' and adding
``(Sep 2009)'' in its place.
0
4. Amend section 52.222-43 by revising the date of the clause,
introductory text in 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) (Sep 2009)
* * * * *
(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. * * *
* * * * *
0
5. Amend section 52.222-44 by revising the date of the clause,
introductory text of 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 (Sep 2009)
* * * * *
(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 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. * * *
* * * * *
[FR Doc. E9-19163 Filed 8-10-09; 8:45 am]
BILLING CODE 6820-EP-S
