Federal Acquisition Regulation: Liquidated Damages Rate Adjustment, 19148-19149 [2018-09167]

Download as PDF 19148 Federal Register / Vol. 83, No. 84 / Tuesday, May 1, 2018 / Rules and Regulations (12) Provides a copy of the assessment made under paragraph (c)(11) of this section to the Agency Head and SBA Administrator; (13) Provides to the chief acquisition officer and senior procurement executive advice and comments on acquisition strategies, market research, and justifications related to consolidation of contract requirements; (14) When notified by a small business concern prior to the award of a contract that the small business concern believes that a solicitation, request for proposal, or request for quotation unduly restricts the ability of the small business concern to compete for the award— (i) Submits the notification by the small business concern to the contracting officer and, if necessary, recommends ways in which the solicitation, request for proposal, or request for quotation may be altered to increase the opportunity for competition; and (ii) Informs the advocate for competition of such agency (as established under 41 U.S.C 1705 or 10 U.S.C. 2318) of such notification; (15) Ensures agency purchases using the Governmentwide purchase card that are greater than the micro-purchase threshold and less than the simplified acquisition threshold were made in compliance with the Small Business Act and were properly recorded in accordance with subpart 4.6 in the Federal Procurement Data System; (16) Assists small business contractors and subcontractors in finding resources for education and training on compliance with contracting regulations; (17) Reviews all subcontracting plans required by 19.702(a) to ensure the plan provides maximum practicable opportunity for small business concerns to participate in the performance of the contract; and (18) Performs other duties listed at 15 U.S.C. 644(k). * * * * * [FR Doc. 2018–09166 Filed 4–30–18; 8:45 am] amozie on DSK30RV082PROD with RULES2 BILLING CODE 6820–EP–P DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 22 and 52 [FAC 2005–98; FAR Case 2017–004; Item III; Docket No. 2017–0004, Sequence No. 1] RIN 9000–AN37 Federal Acquisition Regulation: Liquidated Damages Rate Adjustment 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 to amend the Federal Acquisition Regulation (FAR) to adjust for inflation the rate of liquidated damages assessed for violations of the overtime provisions of the Contract Work Hours and Safety Standards Act. DATES: Effective: May 31, 2018. FOR FURTHER INFORMATION CONTACT: Ms. Zenaida Delgado, Procurement Analyst, at 202–969–7207 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202–501–4755. Please cite FAC 2005– 98, FAR Case 2017–004. SUPPLEMENTARY INFORMATION: SUMMARY: I. Background DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to implement the Department of Labor (DOL) interim final rule published in the Federal Register at 81 FR 43430 on July 1, 2016, the final rule published in the Federal Register at 82 FR 5373 on January 18, 2017, and subsequent adjustments for inflation pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Inflation Adjustment Act) (section 701 of Pub. L. 114–74) (28 U.S.C. 2461 Note). The Inflation Adjustment Act requires agencies to adjust the levels of civil monetary penalties for inflation no later than January 15 of each year. II. Discussion and Analysis The DOL rule set the new rate of liquidated damages at $25 per individual for each calendar day on which a laborer or mechanic employed VerDate Sep<11>2014 18:35 Apr 30, 2018 Jkt 244001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 under a contract or subcontract subject to the overtime provisions of the Contract Work Hours and Safety Standards Act was required or permitted to work in excess of the standard workweek of 40 hours without payment of the required overtime wages. Since this rate will continue to change annually for inflation, FAR 22.302, Liquidated Damages and Overtime Pay, and paragraph (b) of FAR clause 52.222–4, Contract Work Hours and Safety Standards—Overtime Compensation, are revised to reference the current liquidated damages rate, as specified in the DOL regulations at 29 CFR 5.5(b)(2). With this reference being incorporated in lieu of the dollar amount, an annual FAR change will not be necessary. III. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Offthe-Shelf Items This rule amends the FAR to refer to the rate of liquidated damages for violations of the overtime provisions of the Contract Work Hours and Safety Standards Act, in accordance with DOL regulations, rather than provide a specific dollar rate, because this rate is adjusted annually. The revisions do not add any new burdens or impact applicability of clauses and provisions at or below the simplified acquisition threshold, or to commercial items. IV. Publication of This Final Rule for Public Comment Is Not Required by Statute The statute that applies to the publication of the Federal Acquisition Regulation (FAR) is the Office of Federal Procurement Policy statute (codified at title 41 of the United States Code). Specifically, 41 U.S.C. 1707(a)(1) requires that a procurement policy, regulation, procedure, or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because this final FAR rule merely implements the requirements of the DOL rule that was published for comment—interim final rule published in the Federal Register at 81 FR 43430 on July 1, 2016, and the final rule published in the Federal Register at 82 FR 5373 on January 18, 2017. The new E:\FR\FM\01MYR2.SGM 01MYR2 Federal Register / Vol. 83, No. 84 / Tuesday, May 1, 2018 / Rules and Regulations DOL rate is required by statute (the Inflation Adjustment Act); GSA, DoD, and NASA have no authority to change the rate. V. Executive Orders 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. 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. This rule is not a major rule under 5 U.S.C. 804. VI. Executive Order 13771 This rule is not subject to E.O. 13771, because this rule is not a significant regulatory action under E.O. 12866. PART 22—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS 2. Amend section 22.302 by revising paragraph (a) to read as follows: ■ 22.302 pay. Liquidated damages and overtime (a) When an overtime computation discloses underpayments, the responsible contractor or subcontractor must pay the affected employee any unpaid wages and pay liquidated damages to the Government. The contracting officer must assess liquidated damages at the rate specified at 29 CFR 5.5(b)(2) per affected employee for each calendar day on which the employer required or permitted the employee to work in excess of the standard workweek of 40 hours without paying overtime wages required by the statute. In accordance with the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461 Note), the Department of Labor adjusts this civil monetary penalty for inflation no later than January 15 each year. * * * * * VII. Regulatory Flexibility Act Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 41 U.S.C. 1707(a)(1) (see section IV. of this preamble), the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Accordingly, no regulatory flexibility analysis is required and none has been prepared. PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES VIII. Paperwork Reduction Act The 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 22 and 52 Government procurement. amozie on DSK30RV082PROD with RULES2 Dated: April 25, 2018. William F. Clark, Director, Office of Government-wide Acquisition Policy, Office of Acquisition Policy, Office of Government-wide Policy. Therefore, DoD, GSA, and NASA amend 48 CFR parts 22 and 52 as set forth below: ■ 1. The authority citation for parts 22 and 52 continues to read as follows: Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113. VerDate Sep<11>2014 18:35 Apr 30, 2018 Jkt 244001 3. Amend section 52.222–4 by revising the date of the clause and paragraph (b) to read as follows: ■ 52.222–4 Contract Work Hours and Safety Standards—Overtime Compensation. * * * * * Contract Work Hours and Safety Standards—Overtime Compensation (May, 2018) * * * * (b) Violation; liability for unpaid wages; liquidated damages. The responsible Contractor and subcontractor are liable for unpaid wages if they violate the terms in paragraph (a) of this clause. In addition, the Contractor and subcontractor are liable for liquidated damages payable to the Government. The Contracting Officer will assess liquidated damages at the rate specified at 29 CFR 5.5(b)(2) per affected employee for each calendar day on which the employer required or permitted the employee to work in excess of the standard workweek of 40 hours without paying overtime wages required by the Contract Work Hours and Safety Standards statute (found at 40 U.S.C. chapter 37). In accordance with the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461 Note), the Department of Labor adjusts this civil monetary PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 19149 penalty for inflation no later than January 15 each year. * * * * * [FR Doc. 2018–09167 Filed 4–30–18; 8:45 am] BILLING CODE 6820–14–P DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Part 49 [FAC 2005–98, FAR Case 2015–039; Item IV; Docket No. 2015–0039, Sequence No. 1] RIN 9000–AN26 Federal Acquisition Regulations: Audit of Settlement Proposals 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 to amend the Federal Acquisition Regulation (FAR) to raise the dollar threshold requirement for the audit of prime contract settlement proposals and subcontract settlements from $100,000 to align with the threshold for obtaining certified cost or pricing data. DATES: Effective: May 31, 2018. FOR FURTHER INFORMATION CONTACT: Ms. Zenaida Delgado, Procurement Analyst, at 202–969–7207, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202–501–4755. Please cite FAC 2005– 98, FAR Case 2015–039. SUPPLEMENTARY INFORMATION: SUMMARY: I. Background DOD, GSA, and NASA published a proposed rule in the Federal Register at 81 FR 63158 on September 14, 2016, to amend FAR 49.107 to increase the dollar threshold for the audit of prime contract settlement proposals and subcontract settlements submitted in the event of contract termination, from $100,000 to align with the threshold in FAR 15.403–4(a)(1) for obtaining certified cost or pricing data, which is currently $750,000. II. Discussion and Analysis No public comments were submitted in response to the proposed rule. Therefore, there are no changes from the proposed rule made in the final rule. E:\FR\FM\01MYR2.SGM 01MYR2

Agencies

[Federal Register Volume 83, Number 84 (Tuesday, May 1, 2018)]
[Rules and Regulations]
[Pages 19148-19149]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09167]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 22 and 52

[FAC 2005-98; FAR Case 2017-004; Item III; Docket No. 2017-0004, 
Sequence No. 1]
RIN 9000-AN37


Federal Acquisition Regulation: Liquidated Damages Rate 
Adjustment

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 to amend the 
Federal Acquisition Regulation (FAR) to adjust for inflation the rate 
of liquidated damages assessed for violations of the overtime 
provisions of the Contract Work Hours and Safety Standards Act.

DATES: Effective: May 31, 2018.

FOR FURTHER INFORMATION CONTACT: Ms. Zenaida Delgado, Procurement 
Analyst, at 202-969-7207 for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat Division at 202-501-4755. Please cite FAC 2005-98, FAR Case 
2017-004.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD, GSA, and NASA are issuing a final rule amending the Federal 
Acquisition Regulation (FAR) to implement the Department of Labor (DOL) 
interim final rule published in the Federal Register at 81 FR 43430 on 
July 1, 2016, the final rule published in the Federal Register at 82 FR 
5373 on January 18, 2017, and subsequent adjustments for inflation 
pursuant to the Federal Civil Penalties Inflation Adjustment Act of 
1990, as amended by the Federal Civil Penalties Inflation Adjustment 
Act Improvements Act of 2015 (Inflation Adjustment Act) (section 701 of 
Pub. L. 114-74) (28 U.S.C. 2461 Note). The Inflation Adjustment Act 
requires agencies to adjust the levels of civil monetary penalties for 
inflation no later than January 15 of each year.

II. Discussion and Analysis

    The DOL rule set the new rate of liquidated damages at $25 per 
individual for each calendar day on which a laborer or mechanic 
employed under a contract or subcontract subject to the overtime 
provisions of the Contract Work Hours and Safety Standards Act was 
required or permitted to work in excess of the standard workweek of 40 
hours without payment of the required overtime wages. Since this rate 
will continue to change annually for inflation, FAR 22.302, Liquidated 
Damages and Overtime Pay, and paragraph (b) of FAR clause 52.222-4, 
Contract Work Hours and Safety Standards--Overtime Compensation, are 
revised to reference the current liquidated damages rate, as specified 
in the DOL regulations at 29 CFR 5.5(b)(2). With this reference being 
incorporated in lieu of the dollar amount, an annual FAR change will 
not be necessary.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold and for Commercial Items, Including Commercially Available 
Off-the-Shelf Items

    This rule amends the FAR to refer to the rate of liquidated damages 
for violations of the overtime provisions of the Contract Work Hours 
and Safety Standards Act, in accordance with DOL regulations, rather 
than provide a specific dollar rate, because this rate is adjusted 
annually. The revisions do not add any new burdens or impact 
applicability of clauses and provisions at or below the simplified 
acquisition threshold, or to commercial items.

IV. Publication of This Final Rule for Public Comment Is Not Required 
by Statute

    The statute that applies to the publication of the Federal 
Acquisition Regulation (FAR) is the Office of Federal Procurement 
Policy statute (codified at title 41 of the United States Code). 
Specifically, 41 U.S.C. 1707(a)(1) requires that a procurement policy, 
regulation, procedure, or form (including an amendment or modification 
thereof) must be published for public comment if it relates to the 
expenditure of appropriated funds, and has either a significant effect 
beyond the internal operating procedures of the agency issuing the 
policy, regulation, procedure, or form, or has a significant cost or 
administrative impact on contractors or offerors. This final rule is 
not required to be published for public comment, because this final FAR 
rule merely implements the requirements of the DOL rule that was 
published for comment--interim final rule published in the Federal 
Register at 81 FR 43430 on July 1, 2016, and the final rule published 
in the Federal Register at 82 FR 5373 on January 18, 2017. The new

[[Page 19149]]

DOL rate is required by statute (the Inflation Adjustment Act); GSA, 
DoD, and NASA have no authority to change the rate.

V. Executive Orders 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. 
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. This rule is not a major rule 
under 5 U.S.C. 804.

VI. Executive Order 13771

    This rule is not subject to E.O. 13771, because this rule is not a 
significant regulatory action under E.O. 12866.

VII. Regulatory Flexibility Act

    Because a notice of proposed rulemaking and an opportunity for 
public comment are not required to be given for this rule under 41 
U.S.C. 1707(a)(1) (see section IV. of this preamble), the analytical 
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) 
are not applicable. Accordingly, no regulatory flexibility analysis is 
required and none has been prepared.

VIII. Paperwork Reduction Act

    The 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 22 and 52

    Government procurement.

    Dated: April 25, 2018.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA amend 48 CFR parts 22 and 52 as set 
forth below:

0
1. The authority citation for parts 22 and 52 continues to read as 
follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.

PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

0
2. Amend section 22.302 by revising paragraph (a) to read as follows:


22.302   Liquidated damages and overtime pay.

    (a) When an overtime computation discloses underpayments, the 
responsible contractor or subcontractor must pay the affected employee 
any unpaid wages and pay liquidated damages to the Government. The 
contracting officer must assess liquidated damages at the rate 
specified at 29 CFR 5.5(b)(2) per affected employee for each calendar 
day on which the employer required or permitted the employee to work in 
excess of the standard workweek of 40 hours without paying overtime 
wages required by the statute. In accordance with the Federal Civil 
Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461 Note), the 
Department of Labor adjusts this civil monetary penalty for inflation 
no later than January 15 each year.
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. Amend section 52.222-4 by revising the date of the clause and 
paragraph (b) to read as follows:


52.222-4   Contract Work Hours and Safety Standards--Overtime 
Compensation.

* * * * *

Contract Work Hours and Safety Standards--Overtime Compensation (May, 
2018)

* * * * *
    (b) Violation; liability for unpaid wages; liquidated damages. The 
responsible Contractor and subcontractor are liable for unpaid wages if 
they violate the terms in paragraph (a) of this clause. In addition, 
the Contractor and subcontractor are liable for liquidated damages 
payable to the Government. The Contracting Officer will assess 
liquidated damages at the rate specified at 29 CFR 5.5(b)(2) per 
affected employee for each calendar day on which the employer required 
or permitted the employee to work in excess of the standard workweek of 
40 hours without paying overtime wages required by the Contract Work 
Hours and Safety Standards statute (found at 40 U.S.C. chapter 37). In 
accordance with the Federal Civil Penalties Inflation Adjustment Act of 
1990 (28 U.S.C. 2461 Note), the Department of Labor adjusts this civil 
monetary penalty for inflation no later than January 15 each year.
* * * * *
[FR Doc. 2018-09167 Filed 4-30-18; 8:45 am]
 BILLING CODE 6820-14-P