Federal Acquisition Regulation; Changes to Time-and-Materials and Labor-Hour Contracts and Orders, 13766-13767 [2013-04600]
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13766
Federal Register / Vol. 78, No. 40 / Thursday, February 28, 2013 / Rules and Regulations
IV. Paperwork Reduction Act
The interim rule does not contain any
information collection requirements that
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
V. Determination To Issue an Interim
Rule
A determination has been made under
the authority of the Secretary of Defense
(DoD), the Administrator of General
Services (GSA), and the Administrator
of the National Aeronautics and Space
Administration (NASA) that urgent and
compelling reasons exist to promulgate
this interim rule without prior
opportunity for public comment. This
action is necessary because section 515
of the National Defense Authorization
Act (NDAA) for Fiscal Year (FY) 2012
(Pub. L. 112–81) was enacted on
December 31, 2011, and was effective
upon enactment. Section 515 provided
the legal basis for declaration of
contingency operations and the exercise
of related procurement flexibilities in
support of Hurricane Sandy relief in
October 2012. It remains necessary to
implement the statute by revising the
definition of ‘‘contingency operation’’ in
FAR 2.101 to ensure regulatory
conformance with statute. However,
pursuant to 41 U.S.C. 1707 and FAR
1.501–3(b), DoD, GSA, and NASA will
consider public comments received in
response to this interim rule in the
formation of the final rule.
Government procurement.
Dated: February 20, 2013.
Laura Auletta,
Director, Office of Governmentwide
Acquisition Policy, Office of Acquisition
Policy, Office of Governmentwide Policy.
Therefore, DoD, GSA, and NASA
amend 48 CFR part 2 as set forth below:
PART 2—DEFINITIONS OF WORDS
AND TERMS
1. The authority citation for 48 CFR
part 2 continues to read as follows:
■
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 51 U.S.C. 20115.
2. Amend section 2.101, in paragraph
(b)(2), by revising paragraph (2) of the
definition ‘‘Contingency operation’’ to
read as follows:
srobinson on DSK4SPTVN1PROD with RULES2
2.101
*
Definitions.
*
*
*
*
(b) * * *
(2) * * *
Contingency operation * * *
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19:28 Feb 27, 2013
Jkt 229001
[FR Doc. 2013–04599 Filed 2–27–13; 8:45 am]
BILLING CODE 6820–EP–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 8, 12, 16, and 52
[FAC 2005–66; FAR Case 2011–025; Item
II; Docket 2011–0025, Sequence 1]
RIN 9000–AM28
Federal Acquisition Regulation;
Changes to Time-and-Materials and
Labor-Hour Contracts and Orders
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
AGENCY:
DoD, GSA, and NASA are
issuing a final rule amending the
Federal Acquisition Regulation (FAR) to
provide additional guidance when
raising the ceiling price or otherwise
changing the scope of work for a timeand-materials (T&M) or labor-hour (LH)
contract or order.
DATES: Effective April 1, 2013.
FOR FURTHER INFORMATION CONTACT: Mr.
Michael O. Jackson, Procurement
Analyst, at 202–208–4949, for
clarification of content. For information
pertaining to status or publication
schedules, contact the Regulatory
Secretariat at 202–501–4755. Please cite
FAC 2005–66, FAR Case 2011–025.
SUPPLEMENTARY INFORMATION:
SUMMARY:
List of Subject in 48 CFR Part 2
■
(2) Results in the call or order to, or
retention on, active duty of members of
the uniformed services under sections
688, 12301(a), 12302, 12304, 12304a,
12305, or 12406 of title 10 of the United
States Code, Chapter 15 of title 10 of the
United States Code, or any other
provision of law during a war or during
a national emergency declared by the
President or Congress.
*
*
*
*
*
I. Background
DoD, GSA, and NASA published a
proposed rule in the Federal Register at
77 FR 43780 on July 26, 2012, to address
actions required when raising the
ceiling price or otherwise changing the
general scope of a T&M or LH contract
or order. One respondent submitted a
comment on the proposed rule.
PO 00000
Frm 00004
Fmt 4701
Sfmt 4700
II. Discussion and Analysis
The Civilian Agency Acquisition
Council and the Defense Acquisition
Regulations Council (the Councils)
reviewed the public comment in the
development of the final rule. The
comment submitted agreed with the
intent of the rule and praised it as a
helpful change. The final rule is
published without change from the
proposed rule.
III. Executive Order 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. The Office of Information
and Regulatory Affairs (OIRA) has
deemed that this is not a significant
regulatory action and, therefore, was not
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993, and
that this rule is not a major rule under
5 U.S.C. 804.
IV. Regulatory Flexibility Act
DoD, GSA, and NASA have prepared
a Final Regulatory Flexibility Analysis
(FRFA) consistent with the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq. The
FRFA is summarized as follows:
In finalizing FAR rule 2009–043 Time-andMaterials and Labor-Hour Contracts for
Commercial Items it became apparent that
the guidance in the FAR on raising the
ceiling price for a T&M or LH contract or
order was not clear or consistent throughout
the FAR. This case was opened to clarify the
procedures necessary to raise the ceiling
price of a T&M or LH contract or order.
No significant issues were raised by the
public and no changes were made to the
proposed rule.
No comments were submitted by the Chief
Counsel for Advocacy of the Small Business
Administration.
This rule deals with the administration of
T&M and LH contracts and orders and will
have no direct effect on contractors. In
FY2011 the Federal Government awarded
23,023 T&M and LH contracts or orders of
which 6,315 went to small businesses. This
rule will not affect how many small
businesses are awarded this type of contract.
This rule does not add any new
information collection requirements.
Interested parties may obtain a copy
of the FRFA from the Regulatory
Secretariat. The Regulatory Secretariat
E:\FR\FM\28FER2.SGM
28FER2
Federal Register / Vol. 78, No. 40 / Thursday, February 28, 2013 / Rules and Regulations
has submitted a copy of the FRFA to the
Chief Counsel for Advocacy of the Small
Business Administration.
V. Paperwork Reduction Act
The final rule does not contain any
information collection requirements that
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
List of Subjects in 48 CFR Parts 8, 12,
16, and 52
Government procurement.
Dated: February 20, 2013.
Laura Auletta,
Director, Office of Governmentwide
Acquisition Policy, Office of Acquisition
Policy, Office of Governmentwide Policy.
PART 16—TYPES OF CONTRACTS
16.504
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 51 U.S.C. 20113.
PART 8—REQUIRED SOURCES OF
SUPPLIES AND SERVICES
2. Amend section 8.404 by revising
paragraph (h)(3)(iv) to read as follows:
■
Use of Federal Supply Schedules.
*
*
*
*
*
(h) * * *
(3) * * *
(iv) Prior to an increase in the ceiling
price of a time-and-materials or laborhour order, the ordering activity shall—
(A) Conduct an analysis of pricing
and other relevant factors to determine
if the action is in the best interest of the
Government and document the order
file;
(B) Follow the procedures at 8.405–6
for a change that modifies the general
scope of the order; and
(C) Comply with the requirements at
8.402(f) when modifying an order to add
open market items.
PART 12—ACQUISITION OF
COMMERCIAL ITEMS
srobinson on DSK4SPTVN1PROD with RULES2
Contract type.
*
*
*
*
(b)(1) * * *
(ii) * * *
(C) Prior to increasing the ceiling
price of a time-and-materials or laborhour contract or order, shall—
(1) Conduct an analysis of pricing and
other relevant factors to determine if the
VerDate Mar<15>2010
19:28 Feb 27, 2013
Jkt 229001
16.505
Ordering.
*
*
*
*
*
(b) * * *
(4) For additional requirements for
cost reimbursement orders see 16.301–
3.
(5) For additional requirements for
time-and-materials or labor-hour orders,
see 16.601(e).
*
*
*
*
*
■ 6. Amend section 16.601 by—
■ a. Removing from paragraph (c)(2)(i)
‘‘(see 16.601(e)(1))’’ and adding ‘‘(see
16.601(f)(1))’’ in its place;
■ b. Revising the paragraph (d)
introductory text and paragraph (d)(2);
■ c. Redesignating paragraph (e) as
paragraph (f); and
■ d. Adding a new paragraph (e) to read
as follows.
Time-and-materials contracts.
*
3. Amend section 12.207 by revising
paragraph (b)(1)(ii)(C) to read as follows:
*
4. Amend section 16.504 by removing
from paragraph (a)(4)(v) ‘‘(see
16.505(b)(6))’’ and adding ‘‘(see
16.505(b)(8))’’ in its place.
■ 5. Amend section 16.505 by—
■ a. Removing from paragraph
(b)(1)(iv)(E) ‘‘paragraph (b)(4)’’ and
adding ‘‘paragraph (b)(6)’’ in its place;
■ b. Redesignating paragraphs (b)(4)
through paragraphs (6) as paragraphs
(b)(6) through (8), respectively; and
■ c. Adding new paragraphs (b)(4) and
(5) to be read as follows:
16.601
■
12.207
[Amended]
contract or order, the contracting officer
shall—
(1) Conduct an analysis of pricing and
other relevant factors to determine if the
action is in the best interest of the
Government;
(2) Document the decision in the
contract or order file; and
(3) When making a change that
modifies the general scope of—
(i) A contract, follow the procedures
at 6.303;
(ii) An order issued under the Federal
Supply Schedules, follow the
procedures at 8.405–6; or
(iii) An order issued under multiple
award task and delivery order contracts,
follow the procedures at 16.505(b)(2).
*
*
*
*
*
■
Therefore, DoD, GSA, and NASA
amend 48 CFR parts 8, 12, 16, and 52
as set forth below:
■ 1. The authority citation for 48 CFR
parts 8, 12, 16, and 52 is revised to read
as follows:
8.404
action is in the best interest of the
Government;
(2) Document the decision in the
contract or order file; and
(3) When making a change that
modifies the general scope of—
(i) A contract, follow the procedures
at 6.303;
(ii) An order issued under the Federal
Supply Schedules, follow the
procedures at 8.405–6; or
(iii) An order issued under multiple
award task and delivery order contracts,
follow the procedures at 16.505(b)(2).
*
*
*
*
*
13767
*
*
*
*
(d) Limitations. A time-and-materials
contract or order may be used only if—
*
*
*
*
*
(2) The contract or order includes a
ceiling price that the contractor exceeds
at its own risk. Also see 12.207(b) for
further limitations on use of time-andmaterials or labor-hour contracts for
acquisition of commercial items.
(e) Post award requirements. Prior to
an increase in the ceiling price of a
time-and-materials or labor-hour
PO 00000
Frm 00005
Fmt 4701
Sfmt 4700
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
52.216–29
[Amended]
7. Amend section 52.216–29
introductory text by removing from
‘‘16.601(e)(1)’’ and adding ‘‘16.601(f)(1)’’
in its place.
■
52.216–30
[Amended]
8. Amend section 52.216–30 by
removing from the ‘‘16.601(e)(2)’’ and
adding ‘‘16.601(f)(2)’’ in its place.
■
52.216–31
[Amended]
9. Amend section 52.216–31
introductory text by removing
‘‘16.601(e)(3)’’ and adding ‘‘16.601(f)(3)’’
in its place.
■
[FR Doc. 2013–04600 Filed 2–27–13; 8:45 am]
BILLING CODE 6820–EP–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Part 13
[FAC 2005–66; FAR Case 2013–007; Item
III; Docket 2013–0007, Sequence 1]
RIN 9000–AM47
Federal Acquisition Regulation;
Extension of Authority for Use of
Simplified Acquisition Procedures for
Certain Commercial Items
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
AGENCY:
DoD, GSA, and NASA are
issuing a final rule amending the
SUMMARY:
E:\FR\FM\28FER2.SGM
28FER2
]]>Agencies
[Federal Register Volume 78, Number 40 (Thursday, February 28, 2013)]
[Rules and Regulations]
[Pages 13766-13767]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-04600]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 8, 12, 16, and 52
[FAC 2005-66; FAR Case 2011-025; Item II; Docket 2011-0025, Sequence 1]
RIN 9000-AM28
Federal Acquisition Regulation; Changes to Time-and-Materials and
Labor-Hour Contracts and Orders
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the
Federal Acquisition Regulation (FAR) to provide additional guidance
when raising the ceiling price or otherwise changing the scope of work
for a time-and-materials (T&M) or labor-hour (LH) contract or order.
DATES: Effective April 1, 2013.
FOR FURTHER INFORMATION CONTACT: Mr. Michael O. Jackson, Procurement
Analyst, at 202-208-4949, for clarification of content. For information
pertaining to status or publication schedules, contact the Regulatory
Secretariat at 202-501-4755. Please cite FAC 2005-66, FAR Case 2011-
025.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 77 FR 43780 on July 26, 2012, to address actions required
when raising the ceiling price or otherwise changing the general scope
of a T&M or LH contract or order. One respondent submitted a comment on
the proposed rule.
II. Discussion and Analysis
The Civilian Agency Acquisition Council and the Defense Acquisition
Regulations Council (the Councils) reviewed the public comment in the
development of the final rule. The comment submitted agreed with the
intent of the rule and praised it as a helpful change. The final rule
is published without change from the proposed rule.
III. Executive Order 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
The Office of Information and Regulatory Affairs (OIRA) has deemed that
this is not a significant regulatory action and, therefore, was not
subject to review under section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993, and that this rule is not a major
rule under 5 U.S.C. 804.
IV. Regulatory Flexibility Act
DoD, GSA, and NASA have prepared a Final Regulatory Flexibility
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5
U.S.C. 601, et seq. The FRFA is summarized as follows:
In finalizing FAR rule 2009-043 Time-and-Materials and Labor-
Hour Contracts for Commercial Items it became apparent that the
guidance in the FAR on raising the ceiling price for a T&M or LH
contract or order was not clear or consistent throughout the FAR.
This case was opened to clarify the procedures necessary to raise
the ceiling price of a T&M or LH contract or order.
No significant issues were raised by the public and no changes
were made to the proposed rule.
No comments were submitted by the Chief Counsel for Advocacy of
the Small Business Administration.
This rule deals with the administration of T&M and LH contracts
and orders and will have no direct effect on contractors. In FY2011
the Federal Government awarded 23,023 T&M and LH contracts or orders
of which 6,315 went to small businesses. This rule will not affect
how many small businesses are awarded this type of contract.
This rule does not add any new information collection
requirements.
Interested parties may obtain a copy of the FRFA from the
Regulatory Secretariat. The Regulatory Secretariat
[[Page 13767]]
has submitted a copy of the FRFA to the Chief Counsel for Advocacy of
the Small Business Administration.
V. Paperwork Reduction Act
The final rule does not contain any information collection
requirements that require the approval of the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Parts 8, 12, 16, and 52
Government procurement.
Dated: February 20, 2013.
Laura Auletta,
Director, Office of Governmentwide Acquisition Policy, Office of
Acquisition Policy, Office of Governmentwide Policy.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 8, 12, 16, and 52
as set forth below:
0
1. The authority citation for 48 CFR parts 8, 12, 16, and 52 is revised
to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51
U.S.C. 20113.
PART 8--REQUIRED SOURCES OF SUPPLIES AND SERVICES
0
2. Amend section 8.404 by revising paragraph (h)(3)(iv) to read as
follows:
8.404 Use of Federal Supply Schedules.
* * * * *
(h) * * *
(3) * * *
(iv) Prior to an increase in the ceiling price of a time-and-
materials or labor-hour order, the ordering activity shall--
(A) Conduct an analysis of pricing and other relevant factors to
determine if the action is in the best interest of the Government and
document the order file;
(B) Follow the procedures at 8.405-6 for a change that modifies the
general scope of the order; and
(C) Comply with the requirements at 8.402(f) when modifying an
order to add open market items.
PART 12--ACQUISITION OF COMMERCIAL ITEMS
0
3. Amend section 12.207 by revising paragraph (b)(1)(ii)(C) to read as
follows:
12.207 Contract type.
* * * * *
(b)(1) * * *
(ii) * * *
(C) Prior to increasing the ceiling price of a time-and-materials
or labor-hour contract or order, shall--
(1) Conduct an analysis of pricing and other relevant factors to
determine if the action is in the best interest of the Government;
(2) Document the decision in the contract or order file; and
(3) When making a change that modifies the general scope of--
(i) A contract, follow the procedures at 6.303;
(ii) An order issued under the Federal Supply Schedules, follow the
procedures at 8.405-6; or
(iii) An order issued under multiple award task and delivery order
contracts, follow the procedures at 16.505(b)(2).
* * * * *
PART 16--TYPES OF CONTRACTS
16.504 [Amended]
0
4. Amend section 16.504 by removing from paragraph (a)(4)(v) ``(see
16.505(b)(6))'' and adding ``(see 16.505(b)(8))'' in its place.
0
5. Amend section 16.505 by--
0
a. Removing from paragraph (b)(1)(iv)(E) ``paragraph (b)(4)'' and
adding ``paragraph (b)(6)'' in its place;
0
b. Redesignating paragraphs (b)(4) through paragraphs (6) as paragraphs
(b)(6) through (8), respectively; and
0
c. Adding new paragraphs (b)(4) and (5) to be read as follows:
16.505 Ordering.
* * * * *
(b) * * *
(4) For additional requirements for cost reimbursement orders see
16.301-3.
(5) For additional requirements for time-and-materials or labor-
hour orders, see 16.601(e).
* * * * *
0
6. Amend section 16.601 by--
0
a. Removing from paragraph (c)(2)(i) ``(see 16.601(e)(1))'' and adding
``(see 16.601(f)(1))'' in its place;
0
b. Revising the paragraph (d) introductory text and paragraph (d)(2);
0
c. Redesignating paragraph (e) as paragraph (f); and
0
d. Adding a new paragraph (e) to read as follows.
16.601 Time-and-materials contracts.
* * * * *
(d) Limitations. A time-and-materials contract or order may be used
only if--
* * * * *
(2) The contract or order includes a ceiling price that the
contractor exceeds at its own risk. Also see 12.207(b) for further
limitations on use of time-and-materials or labor-hour contracts for
acquisition of commercial items.
(e) Post award requirements. Prior to an increase in the ceiling
price of a time-and-materials or labor-hour contract or order, the
contracting officer shall--
(1) Conduct an analysis of pricing and other relevant factors to
determine if the action is in the best interest of the Government;
(2) Document the decision in the contract or order file; and
(3) When making a change that modifies the general scope of--
(i) A contract, follow the procedures at 6.303;
(ii) An order issued under the Federal Supply Schedules, follow the
procedures at 8.405-6; or
(iii) An order issued under multiple award task and delivery order
contracts, follow the procedures at 16.505(b)(2).
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.216-29 [Amended]
0
7. Amend section 52.216-29 introductory text by removing from
``16.601(e)(1)'' and adding ``16.601(f)(1)'' in its place.
52.216-30 [Amended]
0
8. Amend section 52.216-30 by removing from the ``16.601(e)(2)'' and
adding ``16.601(f)(2)'' in its place.
52.216-31 [Amended]
0
9. Amend section 52.216-31 introductory text by removing
``16.601(e)(3)'' and adding ``16.601(f)(3)'' in its place.
[FR Doc. 2013-04600 Filed 2-27-13; 8:45 am]
BILLING CODE 6820-EP-P
