[Federal Register Volume 78, Number 40 (Thursday, February 28, 2013)]
[Rules and Regulations]
[Pages 13766-13767]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-04600]
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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.
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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--
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a. Removing from paragraph (b)(1)(iv)(E) ``paragraph (b)(4)'' and
adding ``paragraph (b)(6)'' in its place;
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b. Redesignating paragraphs (b)(4) through paragraphs (6) as paragraphs
(b)(6) through (8), respectively; and
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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--
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a. Removing from paragraph (c)(2)(i) ``(see 16.601(e)(1))'' and adding
``(see 16.601(f)(1))'' in its place;
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b. Revising the paragraph (d) introductory text and paragraph (d)(2);
0
c. Redesignating paragraph (e) as paragraph (f); and
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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]
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