[Federal Register Volume 71, Number 238 (Tuesday, December 12, 2006)]
[Rules and Regulations]
[Pages 74656-74667]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-9610]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 16, 32, and 52
[FAC 2005-15; FAR Case 2004-015; Item I; Docket 2006-0020, Sequence 23]
RIN 9000-AK32
Federal Acquisition Regulation; FAR Case 2004-015, Payments Under
Time-and-Materials and Labor-Hour Contracts
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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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 clarify payment
procedures for Time-and-Materials (T&M) and Labor-Hour (LH) Contracts.
DATES: Effective Date: February 12, 2007.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Mr. Jeremy Olson at (202) 501-3221. Please cite FAC 2005-15, FAR case
2004-015. For information pertaining to status or publication
schedules, contact the FAR Secretariat at (202) 501-4755.
SUPPLEMENTARY INFORMATION:
[[Page 74657]]
A. Background
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 70 FR 56314 on September 26, 2005. The amendments made
under this case are intended to be applicable primarily to non-
commercial item contracts. Policies primarily applicable to commercial
item T&M or LH contracts are being addressed separately under FAR case
2003-027.
The proposed amendments to FAR 16.307, 16.601, 16.602, 32.111, and
52.232-7 are intended to amend the underlying policies and increase the
clarity of the affected FAR language. The FAR amendments address the
areas related to payments made under T&M and LH contracts for non-
commercial items, as described below.
1. FAR 16.307 - Contract clauses.
The Councils amended FAR 16.307(a)(1) to specify that the Allowable
Cost and Payment Clause is included in T&M contracts. The clause is
only applicable to the portion of the contract that provides for
reimbursement of materials at actual cost and related indirect costs.
This change is being made to ensure that appropriate rights and
responsibilities are provided in T&M contracts with respect to
reimbursement for material cost.
2. FAR 16.601 - Time-and-materials contracts.
The Councils revised the language at FAR 16.601(a) to provide a
description of ``materials'' as used in ``time-and-materials
contract.'' FAR 16.601(a) currently describes a T&M contract as a
contract that provides for acquiring supplies or services on the basis
of--
Direct labor hours at specified fixed hourly rates that
include wages, overhead, general and administrative expenses, and
profit; and
Materials at cost, including, if appropriate, material
handling costs as part of material costs.
The prior FAR description did not address subcontract costs, even
though such costs are often a significant part of the work performed
and are provided for under the payments clause at 52.232-7. Also, that
description did not address other direct costs and applicable indirect
costs other than material handling (e.g., general and administrative
expenses) that may be appropriate for the acquisition.
3. General structure of FAR 52.232-7 - Payments under Time-and-
Materials and Labor-Hour Contracts.
The Councils amended the current paragraph (b) of the clause at FAR
52.232-7 to specify that the term ``materials,'' as used in the clause,
includes direct materials, subcontracts for supplies and ancillary
services, other direct costs, and applicable indirect costs (this is
consistent with the proposed changes to FAR 16.601). Materials also
include supplies and ancillary services transferred between divisions,
subdivisions, subsidiaries, or affiliates of the contractor under a
common control.
Although the proposed rule had proposed to revise ``materials'' to
include all subcontracts for services, the final rule defines
subcontracts for labor as part of the definition of labor, if the
subcontracted labor meets the requirements of the prime contract for
labor hours. The prior FAR language had caused significant confusion
because it did not adequately describe what is included in ``labor'' or
``materials.''
4. Contractor furnished material - Alternate I.
The Councils moved and amended the prior Alternate I of the clause
at FAR 52.232-7. When a contractor furnishes its own materials that
meet the definition of a commercial item at 2.101, the price to be paid
for such materials shall be the contractor's established catalog or the
market price. The ability of the contractor to bill at such prices
should not be dependent on a contracting officer decision as to whether
an alternate clause should be included in the contract.
5. Profit or fee on materials.
The Councils amended FAR 52.232-7(b)(7) to specifically state that
the Government does not pay profit or fee to the prime contractor on
materials (except for commercial items discussed in item 4, above or as
otherwise provided for in FAR 31.205-26). The Councils believe this is
consistent with the historical intent of the clause and the concept of
a T&M contract. The recovery of profit or fee is accomplished as part
of the labor hour portion of the T&M/LH contract.
6. Billing subcontracts and interdivisional transfers for
incidental supplies or services.
For subcontracts, the Councils clarified that subcontracts for
incidental services are to be reimbursed at the actual subcontract
price, plus allowable indirect costs, per the requirements of FAR
52.216-7, Allowable Cost and Payment. For interdivisional transfers,
the Councils revised the language to limit reimbursement to the actual
rates or commercial prices of the division performing the work and
specified that only one division may obtain profit. No profit
pyramiding within a company is to be permitted.
7. Billing subcontracts and interdivisional transfers for services
that comply with the labor hour requirements.
For services performed by employees of subcontractors, the proposed
rule had included a process under which that labor would be reimbursed
at actual cost (plus related indirect costs) unless it was included on
a list in the prime contract. If it were included on the list, it was
to be paid at the labor hour rate.
The final rule eliminates that proposed approach. The final rule
provides that all labor hours that qualify under the labor hour
requirements of the contract are to be paid at the labor hour rate
specified in the contract. This applies regardless of whether an
individual is an employee of the prime contractor, a subcontractor or
an affiliate of the prime contractor.
8. Solicitation provisions.
The final rule incorporates three new solicitation provisions that
direct how proposals address subcontract labor.
The first provision applies to acquisitions of noncommercial items
that are to be based on adequate price competition. This provision
requires each offeror to indicate for each labor rate in the proposal
whether it is a rate that applies to employees of one company or if it
is a blended rate that applies to employees of more than one company.
The offerors must show for each labor rate if it applies to employees
of the prime contractor, employees a particular subcontractor or
affiliate, or if it is a blended rate that applies to employees of more
than one subcontractor or employees of the prime contractor or any
subcontractor. Agency procedures may authorize contracting officers to
select one of three options in the provision as mandatory, and/or to
require each offer to identify individual subcontractors in the
proposal.
The second provision applies to acquisitions of noncommercial items
not based on adequate price competition. This provision requires the
offeror to establish separate individual labor hour rates for prime
contractor employees, employees of each subcontractor and employees
from affiliates of the offeror.
The third provision applies to acquisitions of commercial items and
it requires each offeror to identify for each proposed labor hour rate
whether the rate applies to prime contractor employees, subcontractor
employees or employees from affiliates of the offeror.
9. Application of the Prompt Payment Act.
The Councils amended FAR 52.232-7(i) to include application of the
Prompt Payment Act for interim payments
[[Page 74658]]
under T&M and LH contracts for services. The Prompt Payment Act has
applied to fixed-price contracts for services for many years. Congress
also recently amended the Prompt Payment Act to include cost
reimbursement contracts for services. The Councils believe that since
the Prompt Payment Act is applicable to both fixed-price and cost
reimbursement contracts for services, it should also be applicable to
T&M and LH contracts for services.
Discussion and Analysis
Payment for labor performed by subcontractors is treated
differently depending on whether a contract action is awarded under
adequate price competition or not. If a contract is not awarded on the
basis of adequate price competition, the contract must separately
identify labor rate categories for each subcontractor, in addition to
the labor rates for the contractor. If the price of a contract is based
on adequate price competition, the CO is not required to include
separate rates for subcontractors, but may use blended rates that apply
to any labor meeting the qualifications of the contract, regardless of
whether provided by the contractor or a subcontractor.
The Councils adopted the philosophy on treatment of subcontractor
labor that was developed under FAR Case 2003-027 and applied it to
noncommercial T&M contracts awarded on the basis of adequate price
competition. That is, FAR case 2003-027 requires no special treatment
of labor provided by subcontractors. Any labor that meets the labor
hour qualifications of the contract is to be paid at the labor hour
rate specified in the contract, regardless if it provided by individual
working for the prime contractor or a subcontractor. This approach was
developed under FAR case 2003-027 for commercial items because it was
felt that competitive pressure would produce fair and reasonable prices
and eliminate potential abuses related to subcontractor labor.
Competition for commercial items is the same as competition for
noncommercial items and the approach should be the same for both FAR
cases.
However, for noncommercial T&M contracts awarded without adequate
price competition, competitive pressures are substantially diminished
and the Government must take a much more cautious approach with respect
to labor provided by subcontractors. Labor hour rates for these types
of actions are largely based on cost information provided by the prime
contractor. In order to avoid potential for issues arising after award
of a noncompetitive T&M contract, each subcontractor must have its
labor hour rates specified in the prime contract. This will be required
in FAR Part 16 and offerors will be required to include such rates in
their offer by a solicitation provision.
The FAR amendment includes three new solicitation provisions to be
used for noncommercial T&M/LH solicitations. These provisions serve
several purposes. First, they communicate plainly that labor hour rates
for subcontractors are a potential major issue that must be addressed
by the CO and by the offerors. Second, they communicate that contracts
awarded on the basis of adequate price competition may be approached in
a much more flexible way than may be used for contracts not awarded
competitively. Finally, they provide a structure to CO's that can be
used to eliminate issues related to potential abuse of subcontract
labor hour rates.
FAR 52.216-29, Time-and-Material/Labor-Hour Proposal Requirements--
Noncommercial Item Acquisitions without Adequate Price Competition,
instructs offerors that they may identify the labor rates they are
proposing in either one of three different manners. First, offerors may
propose blended rates under which labor hours will be paid at the same
rate, regardless of whether the individual performing the labor works
for the prime contractor or a subcontractor. Second, offerors may offer
labor hour rates that include two sets of rates, one set for
individuals employed by the offeror and a second set for individuals
employed by subcontractors. Third, offerors may offer multiple sets of
labor hour rates, one set for individuals employed by the offeror and
additional sets for each subcontractor for individuals employed by
different subcontractors. If CO's are authorized by agency procedures,
the contracting officer may amend this provision to pre-select a single
method from among those three methods that every offeror must use.
FAR 52.216-30, Time-and-Material/Labor-Hour Proposal Requirements--
Noncommercial Item Acquisitions without Adequate Price Competition,
instructs offerors that they must offer multiple sets of labor hour
rates, one set for individuals employed by the offeror and a additional
sets for each subcontractor for individuals employed by different
subcontractors. The purpose of this solicitation provision is to
enforce the policy in Part 16 which requires acquisitions awarded on
the basis other than adequate price competition to include individual
labor hour rates for each subcontractor.
FAR 52.216-31, Time-and-Material/Labor-Hour Proposal Requirements--
Commercial Item Acquisitions, instructs offerors that they must
identify for each labor hour rate if the rate applies to only the
offeror, a subcontractor, and affiliate of the offeror, or any
combination.
Disposition of Public Comments
Comments were received from 17 respondents in response to the
proposed rule. The Councils considered all of the comments and
recommendations in developing the final rule. The Councils made the
following changes to the proposed rule as a result of the public
comments and deliberations:
(1) Definition of ``Hourly Rate.'' Established a definition for
``hourly rate'' to permit reimbursement of subcontracts for services
and services transferred between divisions, subsidiaries, or affiliates
under a common control at the hourly rates in the schedule when the
employee meets the labor qualification specified in the contract (see
comment (4)(c)(3)).
(2) Definition of ``Materials.'' Revised the definition for
``materials ''to (1) exclude subcontracts for services and services
transferred between divisions, subsidiaries, or affiliates under a
common control from the definition of ``materials'' because these
services are included in the ``hourly rate'' when the services meet the
labor qualifications specified in the contract (2) add incidental
services to the examples of other direct costs (see comment (4)(c)(3)).
Subcontracts for services and services transferred between divisions,
subsidiaries, or affiliates under a common control that do not meet the
labor qualifications specified in the contract are incidental services
but see (3)(ii) below.
(3) Reimbursement for Subcontract and Interdivisional Transfers of
Services. Eliminated the provisions in the proposed rule that only
permitted reimbursement of subcontract costs at the hourly rates in the
contract when the subcontractors were listed in the contract. (see
comment (4)(c), (4)(e)). Added provisions that--
(i) Require reimbursement of subcontracts for services and services
transferred between divisions, subsidiaries, or affiliates under a
common control of at the hourly rates in the schedule that include
profit when the employees performing the work meet the qualifications
specified in the contract.
(ii) Address reimbursement for subcontracts for services and
services transferred between divisions, subsidiaries, or affiliates
under a common control when the employees performing the work do not
meet the qualifications specified in the contract.
[[Page 74659]]
Payment for such services is at the sole discretion of the Government.
(iii) Require separate fixed hourly rates that include wages,
overhead, general and administrative expenses, and profit for each
category of labor. When the contract is awarded without adequate price
competitions, the rule also requires a separate set of rates for labor
performed by the contractor, each subcontractor, and each division,
subsidiary, or affiliate of the contractor under a common control that
will perform on the contract.
(4) Solicitation Provisions. Added three solicitation provisions to
ensure contractors understand the methodology for reimbursing
subcontract costs (see comment (4)(c),(11)(c)).
(5) Timecards. Revised the rule to recognize that companies use
both paper-based and electronic timecards (see comment (4)(c), (9)).
(6) Commercial Item Materials. Revised the prescription for
reimbursing commercial items to clarify the commercial catalog or
market prices are subject to negotiation (see comment (4)(c)(4)(b)).
(7) Assignment and Release of Claims. Re-titled the paragraph
previously title ``Assignment'' to ``Assignment and Release of Claims''
to clarify both topic are covered in the paragraph (see comment (4)(c),
(7)).
(8) Refunds. Deleted the current provision on refunds from the
clause because the provisions duplicate coverage in the Allowable Cost
and Payment clause (see comment (4)(c), (4)(d)).
Discussion of Public Comments
(1) Restrict Use of T&M Contracts. A respondent commented: Revise
FAR 16.601(c) to also restrict the use of T&M contracts when the costs
other than direct labor are incidental to the work. If a contract
requires substantial direct materials, interdivisional transfers,
subcontracts, and other direct costs, or the costs are so high that
they warrant the submission, auditing, and settlement of final indirect
rates, the contract type should not be a T&M contract.
Response: When substantial direct materials, interdivisional
transfers, subcontracts, and other direct costs are anticipated, a T&M
contract type may not be appropriate. However, selecting the
appropriate contract type is generally a matter for negotiation and
requires the exercise of sound judgment. The objective is to negotiate
a contract type and price (or estimated cost and fee) that will result
in reasonable contractor risk and provide the contractor the greatest
incentive for efficient and economical performance. There are many
factors the contracting officer must consider in selecting the
appropriate contract type. T&M contracts are the least preferable
contract type that can only be used when it is not possible at the time
of placing the contract to estimate accurately the extent or duration
of the work or to anticipate costs with any reasonable degree of
confidence.
(2) Allowable Cost and Payment Clause. A respondent commented:
Clarify which provisions of the Allowable Cost And Payment clause apply
to the material portion of T&M contracts. Recommend either repeating
the applicable portions of the clause in the T&M clause or identifying
the Allowable Cost and Payment clause as a required clause in FAR
Subpart 16.6.
Response: As prescribed in FAR 16.307(a), the Allowable Cost and
Payment clause is a required clause for all cost-reimbursement
contracts. All provisions of the clause are applicable to the material
portions of T&M contracts. The rule clearly specifies that the
Allowable Cost and Payment clause is included in T&M contracts and that
it is only applicable to the portion of the contract that provides for
reimbursement of materials at actual costs. The change is being made to
ensure that the appropriate rights and responsibilities are provided in
T&M contracts. The Councils see no reason to repeat the clause in the
T&M clause. Multiple clauses will be included in T&M contracts.
(3) Definition of Materials. A respondent commented: The proposed
definition of material that includes direct materials, subcontracts for
supplies and services, other direct costs, and applicable indirect
costs adds certainty to the process and will eliminate significant
issues that arise during the audit process. A respondent commented: The
proposed definition of materials is contrary to the common business
meaning of the word. Instead of defining materials to include
subcontracted services, the rule should exclude the word materials from
the contract type. The Government routinely reimburses travel,
equipment, communication, and other direct costs under T&M contracts.
Recommend instead establishing a time-and-other-direct-cost contract
type. A respondent commented: Do not include subcontracts in the
definition of materials. Instead, separately address subcontracts and
interdivisional transfers to clarify the payment policies for these
elements of cost and to avoid inevitable disputes over whether the
subcontract for supplies and services was ``material consumed directly
in connection with furnishing the service'' that is reimbursed at the
fixed contract rates or another type of subcontract for supplies and
services that would be reimbursed at actual costs. A respondent
commented: Including services transferred between divisions,
subsidiaries, or affiliates of the contractor under a common control
and subcontracts for services in the definition of materials is
contrary to the traditional, and common sense, definition of the term
``materials.'' Prime, subcontract, and interdivisional labor should be
included in the ``time'' element. A respondent commented: Including
subcontract services and incidental expense in ``materials'' is
contrary to common usage and to the language of FAR 31.205-26 and
45.301. Instead, recommend separately addressing the elements of costs
as follows:
Direct labor (time) means prime and subcontractor labor
devoted to the performance of the tasks in the statement of work (SOW).
Materials mean products, including raw materials, parts,
subassemblies, components, and manufacturing supplies, whether
manufactured or purchased by the contractor, and including such
collateral items as inbound transportation and in transit insurance.
Incidental services means services performed or purchased
solely for the support of contract direct labor, such as travel,
printing, or computer usage.
Indirect costs.
Response: While the definition for materials in the rule is
different from the referenced definitions at FAR 31.205-26 and 45.301,
reimbursing subcontracts for services and other costs as materials is
not contrary to common usage for T&M contracts. Currently, FAR
16.601(a) only identifies ``direct labor'' and ``materials'' as
elements of T&M contracts. However, the associated payment clause at
FAR 52.232-7, Payments Under T&M/LH Contracts addresses payment of
``materials and subcontracts.'' In addition, the Government routinely
pays contractors for other direct costs (ODC) and G&A incurred in
performance of a T&M contract even though ODC and G&A are not mentioned
in FAR 16.601 or 52.232-7. In addition, contractors commonly record
subcontracts for services, like subcontracts for supplies, as elements
of ``materials'' for accounting purposes. There are no known problems
with the longstanding practice of reimbursing these other costs as
materials. Therefore, the Councils see no reason to revise ``time-and-
materials'' contracts to ``time-and-other-direct-
[[Page 74660]]
cost'' or ``time-and-material-and-subcontract-and-interdivisional
transfers'' or ``time-and-material-and-incidental services-and-indirect
costs'' contracts as recommended by the various commenters. The
Councils did, however, establish a definition for ``hourly rate'' to
clarify that subcontract and interdivisional labor will be reimbursed
at the ``hourly rate'' whenever the employee satisfies the labor
qualifications specified in the contract. The Councils also revised the
definitions of ``materials'' to-- (1) exclude subcontracts for services
and interdivisional transfers of services that meet the labor
qualifications specified in the contract from the definition of
material because these elements of cost are now included in the
definition of ``hourly rate'' for the purposes of reimbursing the
subcontracts; and (2) add incidental services to the examples of other
direct costs.
(4) Methodology for Reimbursing Materials.
(a) A respondent commented: Strongly support the proposed
methodology for reimbursing commercial materials and the deletion of
the ``most favored customer''provisions.
(b) A respondent commented: Revise the prescription for reimbursing
commercial materials from ``shall be the contractor's established
catalog or market price ''to `` shall not exceed the contractor's
established catalog or market price'' because the proposed language
could be interpreted to mean contracting officers cannot negotiate
better pricing.
Response: While the proposed language did not preclude negotiating
better prices, the recommended change more clearly establishes that the
prices are subject to negotiation. Therefore, the Councils revised the
rule as recommended.
(c) A respondent commented: Pay the catalog or market price for
materials of the prime's own production that are commercial items
(excluding the products of its affiliates) and reimburse the cost of
other materials at actual costs, including properly allocable indirect
costs, but no profit or fee.
Response: When a contractor furnishes its own material that meets
the definition of a commercial item at FAR 2.101, the contractor will
be paid the established catalog or market price for the item. Product
of its affiliates will be reimbursed on the basis of costs incurred
except when the supplies are sold or transferred between divisions,
subdivisions, subsidiaries, or affiliates of the contractor under a
common control and it is the established practice of the transferring
organization to price interdivisional transfers at other than cost and
the other conditions of 31.205-26 are met. Profit or fee will not be
paid on materials that are reimbursed at cost.
(d) A respondent commented: Delete the current provision on refunds
from FAR 52.232-7, Payments Under Time-and-Materials and Labor-Hour
Contracts, because the provision duplicates the provision in FAR
52.216-7, Allowable Cost and Payment.
Response: The Councils revised the rule to eliminate redundant
coverage.
(e) Methodology for Reimbursing Subcontracts. A respondent
commented: Concept of reimbursing subcontract labor at the hourly rates
in the contract or the actual cost to the prime contractor is sound but
do not permit blended prime and subcontractor labor rates. Establish
separate hourly rates in the contract for subcontract labor not
reimbursed based on actual costs. The subcontract rates should include
prime contractor indirect costs allocable to subcontract costs and
profit. A respondent commented: Reimburse all subcontract labor at the
contract rates when the subcontracts satisfies all contract labor
qualifications is appropriate, fair, and in the Government's best
interest. Requiring subcontracts to be listed in the contract in order
to be reimbursed at the contract labor rates will make it extremely
difficult for the Government to acquire ``on-call'' or ``on-demand''
services that sometimes require a prime contractor to take
responsibility for hundred or even thousands of subcontractors often
interspersed across a wide geographic area. Requiring contract
modifications for every change in subcontractor poses an excessive
administrative burden on both parties. Reimburse subcontract labor at
the schedule labor rates without listing the subcontractors in the
contract when the contractor's proposal indicates that some of the work
may be performed by subcontractors that meet the contract's
qualification requirements and that the price for that ``type of work''
will be the prime contract's labor rate which may be blended or other
rate. T&M/LH contracts specify the required labor qualifications.
Whether the person filling the position is an employee of the prime or
a subcontractor, the qualifications must be met. The Government has
already determined through adequate price competition or otherwise the
pricing is fair and reasonable for the ``type of work.'' The
subcontract consent provisions are unduly burdensome. Absent the
contracting officer's approval and the resulting contract modification
to add new subcontractors, contractors will not be paid profit on the
subcontract costs even though the contractor remains responsible for
the subcontractor's performance. Lack of profit will discourage the use
of subcontractors. A respondent commented: Allowing contracting
officers to identify the subcontracts to be reimbursed at the contract
rates is a positive step since the rule clearly allows prime to be paid
profit on subcontracts. Recommend also allowing reimbursement for
subcontracts at the contract rates when the prime proposal includes
subcontracted services, the contractor is in a teaming relationship
with the subcontractor, or when the acquisition has opportunities for
small and small disadvantaged businesses. Small and small disadvantaged
businesses rely heavily on subcontracting with prime contractors on T&M
contracts. If primes are not paid profit on the subcontracts, the
primes will be motivated to perform all the work themselves which could
hurt small businesses and may not result in the best technical solution
for the Government. Contractors establish large teams of large and
small businesses to meet the requirements of indefinite-delivery
contracts. If they are not allowed to recover profit on subcontracts,
competition will be reduced and the Government may not get competition
or the best technical solution. When the subcontracts are reimbursed at
the contract rates, the prime assumes the risk of subcontractor labor
rate changes. The Government is assured fair and reasonable prices
based on competition or price analysis. Reimbursing subcontracts at
actual costs shifts the risk of subcontract labor escalation to the
Government. A respondent commented: Reimburse subcontract labor under
the labor portion of the contract and do not treat subcontracts as an
element of ``material.'' If the work qualifies for the hourly rate in
the schedule, the Government should not care if the work was performed
by a subcontractor or another division of the contract. It is not
always feasible to establish hourly rates for specific subcontractors
at the time of contract award. In some cases, the fixed hourly rates
are a blend of anticipated prime and subcontractor hourly rates. This
approach yields more competitive hourly rates for the Government and
promotes using all categories of small businesses to achieve price
advantage. Requiring separate fixed hourly rates for individual
subcontractors would further complicate an already complex invoicing
and payment process. Further, the bargain agreed upon at the time of
contract award must be maintained
[[Page 74661]]
throughout contract performance unless revised by mutual agreement.
Some contractors have priced blended prime and subcontract rates but
were subsequently reimbursed on their actual costs for subcontracts
which is inequitable because it unilaterally changed the terms of the
contract. A respondent commented: Requiring additional rates and
approvals add an unnecessary layer of administration that is not
commensurate with the level of risk or cost benefit. Additional
controls that restrict a contractor's use of proven subcontractors
greatly reduce a contractor's ability to efficiently support the
Government. Recommend revising the rule to properly place the
responsibility for performing and providing qualified staff on the
prime. The rule should allow prime contractors to provide competent
staff, including subcontractors when a business need exists, and only
designate key personnel when the criticality of the work dictates a
need to do so. Change the rule to only require a notification instead
of the proposed requirement for consent to subcontract. Use the
proposed audit provisions as the monitoring device for excessive profit
or fee. The Government can reject the work provided by a subcontractor
using the inspection and acceptance clauses. A respondent commented: It
is not always feasible to establish hourly rates for specific
subcontractors at the time of contract award. T&M contracts are only
used when it is not possible at the time of award to estimate
accurately the extent or duration of the work. It may be difficult to
identify at the time of award all the subcontractors that ultimately
will be needed to perform the work. For ``on-call'' or ``on-demand''
services, contractors are not able to predict which subcontractors will
be called on to fulfill each requirement. The restriction on
subcontract profit will reduce the use of qualified subcontractors,
especially small and small disadvantaged business. In addition,
contractors will not be paid the appropriate compensation for
administrative cost and financial risk that accompany the use of
subcontracts unless the subcontractors are identified in advance. Any
final rule should allow contractors to be paid profit on all
subcontract labor that is not incidental to performance. The Government
should focus on the value of the hours worked instead of the name of
the subcontractor performing the work to allow the prime contractor to
identify and retain the best people available for contract performance.
A more flexible approach should be used that does not require formal
contract modification. The flexibility in performance and selection of
subcontractors is particularly critical to the prime contractor. A
respondent commented: Prime contractors will only use subcontractors
that are less expensive than the prime if blended prime and subcontract
labor rates are used. This will limit the use of small business
subcontractors since few small businesses achieve T&M rates that are
competitive with large businesses because their overhead bases are
smaller. Also, requiring each subcontract to be identified in the
contract in order to be reimbursed at the contract rates will serve as
a barrier to adding new subcontractors during contract performance. The
requirement to list each subcontractor in the contract is significantly
more cumbersome that the consent to subcontract requirements that are
currently required for T&M contracts. Contractors will have to develop
new blended rates that will be subject to audit and approval and
formally modify the contract to add new subcontractors. Prime
contractors will only use small businesses to the extent they are
required to do so by their small business subcontracting plans and
maybe not even then if the small businesses rates are sufficiently
higher than the blended rates. A respondent commented: Not paying
profit or fee on subcontracts is extremely detrimental to small
businesses. Many small business prime contractors get much of their
annual revenues from contracts with large amounts of materials and
minor labor hour or T&M costs to support integration, deployment, or
maintenance of the materials. Not paying profit on these materials
would erode potential earnings for these small businesses. In addition,
large businesses often subcontract out work that could be performed by
the large business to meet small business subcontracting goals on
Government contracts. If large businesses are no longer paid profit on
subcontracts, large businesses will be far less likely to subcontract
out work. An objective of the rule is to ensure fair and reasonable
prices. Fair and reasonable must be applied to both the Government and
the contractor. Not paying profit on materials is not a ``fair''
policy. Market forces will act competitively to keep the Government's
price fair and reasonable. A respondent commented: The Government pays
profit on materials and subcontracts on cost-plus-fixed-fee contracts.
The existing prohibition on paying profit on materials and subcontracts
on T&M contracts stems from the fact that such costs were incidental to
the contract. Contrary to statements in the proposed rule, the
Government's use of T&M contracts has changed over time and other
factors have significantly changed. Large businesses are now required
to subcontract out to small and small disadvantaged subcontractors to
meet their subcontracting goals. This requirement did not exist when
the prohibition on paying profit on materials and subcontracts was
adopted. Small businesses-- (1) use consultants and subcontractors to
supplement their capabilities and effectively compete for potential
contracts; (2) need the flexibility to change subcontractors during
contract performance; and (3) need to make profit on subcontracted
services or they will not bid on contracts if they do not have the
employees with the required expertise. The need for subcontracts and
consultants is driven by the requirement of the contract. The contracts
are not personal services contracts. The Government and prime
contractors contract for services at specified prices and they
negotiate the price for the work in terms of the effort required by the
contract. When small businesses do not have the in-house staff to
perform the work, they use salary surveys and their indirect cost
structure to estimate the cost of employees they will ultimately
subcontract with to perform the work which may or may not be disclosed
to the Government. On large procurement, this may be the only way to be
responsive. The small businesses takes the risk that they will be able
to find subcontract labor at their estimated rate and there are times
when the small businesses' actual cost for the labor exceeds their
estimated price and the small business does not recover its cost of
subcontracting. For many small businesses, subcontract labor may be
used to perform the majority of the work. If the small business will
not be paid profit on these subcontracts, the small business would not
be adequately compensated and would have no incentive to bid on the
effort. As a result, competition would decrease and some services would
not be available in the small business community. In addition, placing
too many limitations on subcontracting for large businesses will
ultimately reduce the subcontracting opportunities for small
businesses. It is in the best interest of the Government to encourage
subcontracting. The Government should have the right to know when
subcontractors are being replaced for quality assurance purposes and
should be able to review and approve subcontractor's qualifications.
Finally, listing only the known subcontracts in
[[Page 74662]]
the contract will not help small businesses and will discourage prime
contractors from finding and using small businesses. Contract
modifications to add subcontractors after contract award could take
significant time and could significantly disrupt or delay the federal
procurement process. When there is adequate competition or GSA schedule
prices, the Government should have the right to approve new
subcontractors for quality but not the right to automatically negotiate
a new hourly rate which implies the right of contractors to increase
the hourly rates after contract award. The administrative costs for T&M
contracts will increase significantly and competition among small
businesses will significantly decrease. The Government should focus on
disclosure and verification of qualifications and not prohibitions or
restrictions on subcontracting and renegotiating prices when adequate
competition exists. Instead of limiting reimbursement to subcontractors
listed in the contract, recommend also permitting subcontractors and
consultants to be reimbursed at the contract rates if the labor
categories are listed that that will be subcontracted out and simply
adding the subcontractors name to the list when the subcontract is
awarded. A respondent commented: The inability to make profit, coupled
with the inherent prime contractor oversight requirements will have a
negative affect on subcontracting. Prime contractors will be motivated
to use their own employees in order to earn profit. The negative affect
will fall disproportionately on small businesses which is contrary to
current procurement policy. A respondent commented: Reimburse
subcontract at the prime's actual cost because contractors are being
reimbursed for subcontract at the prime's rates but are using lower
costs, and less qualified, subcontracts to perform the work. A
respondent commented: Restrict reimbursement of subcontract costs to
actual costs because the prime contractor could subsequently negotiate
lower rates with subcontractors that were authorized to be paid at the
schedule rates and the Government would pay excessive prices for
subcontracted effort that may be of a level less than that envisioned
by the Government. Reimbursing at the schedule rates encourages
contractors to maximize profit by subcontracting out more of the effort
at lower subcontract rates. The Government will expend additional
resources to monitor the quality and efficiency of the subcontract
labor since the subcontract effort will not be readily apparent when
billed at the schedule rates.
Response: Limiting reimbursing of subcontract labor to actual costs
is not consistent with the treatment on all other flexibly priced
Government contracts where prime contractors are paid profit on
subcontract costs. In addition, requiring subcontractors to be listed
in the contract in order to be reimbursed at the hourly rates could
have a negative impact on small businesses and was administratively
burdensome to contractors. Upon further consideration, the Councils
believe it is appropriate to reimburse subcontracts on competively
awarded T&M contracts at the schedule labor rates without listing the
subcontracts. The Councils revised the rule accordingly. However, the
Councils do not believe it is appropriate to eliminate the traditional
consent and advance notification requirements for non-commercial T&M.
These same consent and advance notification requirements are not new
for T&M contracts. The Councils are unaware of any systemic issues
relating to their applicability on T&M contracts. Therefore, the final
rule does not change the standard consent and advance notification
requirements for non-commercial T&M contracts. In addition, the
Councils revised the rule to require separate labor rates for each
subcontract and interdivisional transfer of services when adequate
price competition is not obtained. There may be circumstances when it
is appropriate to use blended prime and subcontract labor rates when
the prices are based on adequate competition. Therefore, the rule
permits use of blended prime and subcontract labor rates when the prime
contract is awarded with adequate competition. However, nothing in the
rule prevents the Government from establishing separate labor rates for
each subcontract when the prime contract is awarded based on
competition. Also, the rule provides for payment of profit on
subcontract labor paid at the hourly rates in the contract.
(f) Interdivisional Transfers. Coalition Comment: Imposing FAR Part
31 on interdivisional transfers should be avoided.
Response: The rule provides that interdivisional transfers of labor
that meet the qualifications specified in the contract will be
reimbursed at the ``hourly rates'' in the contract. For these
interdivisional transfers, FAR Part 31 is not imposed. For all other
interdivisional transfers, contractors will be reimbursed on the basis
of cost incurred in FAR Subpart 31.2.
(g) A respondent commented: Pay allowable indirect costs allocable
to subcontracts, either by inclusion in stipulated hourly rates for
specific contractors or by addition to subcontract direct costs, (b)
materials, and (c) incidental services.
Response: The rule permits payment of indirect costs either by
inclusion in the hourly rates in the contract when the subcontract
labor meets the labor qualifications specified in the contract or at
actual costs as recommended by the commenter.
(h) A respondent commented: Reimburse the prime contractor for the
cost of incidental services, including properly allocable indirect
costs, but no profit or fee.
Response: Refer to Comment 3 above. The Councils did not adopt the
recommendation to establish a new ``incidental services'' category. The
rule does, however, result in reimbursement of these elements of costs,
including properly allocable indirect costs, with no profit or fee.
(5) Total Cost and Ceiling Price. A respondent commented:
Consolidate the ``Total Cost'' and ``Ceiling Price'' paragraphs.
Response: The ``Total Cost'' paragraph addresses contractor
responsibilities. The ``Ceiling Price'' paragraph addresses the
Government's responsibility to pay or not pay. Therefore, the Councils
believe it is appropriate to separately address total cost and the
ceiling price.
(6) Assignment and Release of Claim. A respondent commented: Change
the title of paragraph (f) of the FAR clause at 52.232-7, Payments
Under Time-and-Materials and Labor-Hour Contracts from ``Assignment''
to ``Release of Claims,'' which is what the paragraph is really about.
Response: The Councils revised the title of the paragraph to
``Assignments and Release of Claims'' because both topics are discussed
in the provision.
(7) Withhold. A respondent commented: Revise the rule to clarify
the payment withhold is limited to five percent or $50,000 and that the
withhold is applied at the contract level instead of the task order
level.
Response: The Payments under Time-and-Materials and Labor-Hour
Contracts clause (52.232-7) was modified as suggested by the contractor
in FAR Case 2004-003 which was published in the Federal Register at 71
FR 43576 on July 27, 2005.
(8) Timecards. A respondent commented: Delete the requirement to
validate the individual daily job timecards to provide contractors the
flexibility to use electronic time keeping systems.
[[Page 74663]]
Response: The Councils revised the final rule to require access to
the timekeeping records instead of job timecards to recognize
electronic timekeeping systems.
(9) Prompt Payment. A respondent commented: Revise the rule to
permit Prompt Payment Act interest also on the material portion of T&M
contracts. The Prompt Payment Act was revised to make prompt payment
interest applicable to interim payments on cost reimbursement contracts
for services. T&M contracts are not equivalent to cost reimbursement
contracts and it is not logical to apply interest to labor without
including the material resources required to provide the labor.
However, the impact of excluding interest on the material portion is
probably negligible since most of the payments on T&M contracts are for
labor. Restricting prompt payment interest to labor will certainly make
more work for Government disbursing official who will have to segregate
labor from material to compute the interest penalties. Any amount the
Government saves from only paying prompt payment interest on labor will
likely be more than offset by the administrative costs of computing the
interest on only the labor portion of the invoice.
Response: The Prompt Payment Act applies to fixed-price contracts
and interim payments on cost-reimbursable contracts for services. The
Councils lack the authority to extend the Act to interim payments for
supplies.
(10) Miscellanous.
(a)A respondent commented: Strongly request the Councils to hold
additional public meetings to provide the public the opportunity to
further explain the comments submitted.
Response: The Councils determined that the FAR changes are within
the scope of changes contemplated by the proposed rule and that no
further public meetings or proposed rule are appropriate. Further
public meetings or public comments would not result in comments that
are substantially different from those already submitted.
(b) A respondent commented: Recommend having the effective date for
the rule be 60 days after publication in the Federal Register so
agencies can develop implementing guidance and update the associated
training.
Response: The effective date for FAR changes is generally 30 days
after publication in the Federal Register. However, the Councils agree
agencies may need additional time to implement guidance and update the
associated training. Therefore, the rule will have an effective date 60
days after publication in the Federal Register.
(c) A respondent commented: Recommend the Councils take steps to
ensure the solicitation process clearly addresses the method for
reimbursing subcontract costs, i.e., only at actual costs unless the
subcontractor is listed in the contract.
Response: The rule no longer requires listing subcontracts in the
contract in order for the costs to be reimbursed using the fixed hourly
rates in the contract. The rule includes two solicitation provisions to
ensure contractors understand the methodology for reimbursing
subcontract costs.
(d) A respondent commented: Urge the Councils to also remove the
``most favored customer'' provisions from FAR 31.106-3.
Response: The provisions at FAR 31.106-3 are outside the scope of
this rule. However, the Councils are considering the recommended
change.
(e) A respondent commented: The Supplementary Information in the
proposed rule said that subcontracted labor paid at the LH rate must be
accounted for and substantiated under the same standards as labor hours
provided by the prime contractor. This could be interpreted to mean
prime contractors are required to include the subcontractor costs in
the prime's overhead base for direct labor. Clarify how prime
contractors should allocate overhead to subcontract labor. Also,
address the potential inconsistency of bidding/billing some
subcontractor labor at contract rates and others at cost with respect
to Cost Accounting Standards (CAS) compliance.
Response: The Supplementary Information in the proposed rule did
include this statement. However, nothing in the proposed or final rule
require prime contractors to include subcontractor costs in the
overhead base for direct labor. Contractors should continue to allocate
overhead to subcontract labor consistent with their disclosed or
established procedures. CAS relate to allocation issues. The costs
allocable to T&M contracts may differ significantly from the costs
billed and paid for the T&M contract. The same is true for fixed-price
contracts.
(f) A respondent commented: Replace the term ``voucher'' with
``invoice''.
Response: The term ``voucher'' refers to interim payments on cost
reimbursement contracts. The term ``invoice'' refers to delivery
payments and payments on fixed-price contracts. Therefore, the Councils
did not revise the terminology as recommended.
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 Regulatory Flexibility Act, 5 U.S.C. 601, et seq., applies to
this final rule. The Councils prepared a Final Regulatory Flexibility
Analysis (FRFA) as follows:
1. Statement of need for, and objectives of, the rule.
This rule revises the Federal Acquisition Regulation to amend
underlying policies and increase the clarity of payments made under
T&M and LH contracts for non-commercial items. The objectives of the
amendment are to ensure fair and reasonable prices under T&M
contracts and to eliminate the ambiguity in T&M contracts that has
been responsible for confusion over payment amounts for
subcontractor provided labor.
2. Summary of significant issues raised by the public comments
in response to the Initial Regulatory Flexibility Analysis (IRFA), a
summary of the assessment of the agency of such issues, and a
statement of any changes made in the proposed rule as a result of
such comments.
Comments were received from 17 respondents in response to the
proposed rule. The Councils considered all of the comments and
recommendations in developing the final rule. The Councils made the
following changes to the proposed rule as a result of the public
comments and deliberations:
(a) Definition of ``Hourly Rate.'' Established a definition for
``hourly rate'' to permit reimbursement of subcontracts for services
and services transferred between divisions, subsidiaries, or
affiliates under a common control at the hourly rates in the
schedule when the employee meets the labor qualification specified
in the contract (see comment (4)(c)(3)).
(b) Definition of ``Materials.'' Revised the definition for
``materials'' to-- (1) exclude subcontracts for services and
services transferred between divisions, subsidiaries, or affiliates
under a common control from the definition of ``materials'' because
these services are included in the ``hourly rate'' when the services
meet the labor qualifications specified in the contract; and (2) add
incidental services to the examples of other direct costs (see
comment (4)(c)(3)). Subcontracts for services and services
transferred between divisions, subsidiaries, or affiliates under a
common control that do not meet the labor qualifications specified
in the contract are incidental services but see (3)(ii) below.
(c) Reimbursement for Subcontract and Interdivisional Transfers
of Services. Eliminated the provisions in the proposed rule that
only permitted reimbursement of subcontract costs at the hourly
rates in the contract when the subcontractors were listed in the
contract (see comment (4)(c)(4)(e)). Added provisions that--
(i) Require reimbursement of subcontracts for services and
services transferred between divisions, subsidiaries, or affiliates
under a common control of at the hourly rates in the schedule that
include profit when the
[[Page 74664]]
employees performing the work meet the qualifications specified in
the contract.
(ii) Address reimbursement for subcontracts for services and
services transferred between divisions, subsidiaries, or affiliates
under a common control when the employees performing the work do not
meet the qualifications specified in the contract. Payment for such
services is at the sole discretion of the Government.
(iii) Require separate fixed hourly rates that include wages,
overhead, general and administrative expenses, and profit for each
category of labor. When the contract is awarded without adequate
price competitions, the rule also requires a separate set of rates
for labor performed by the contractor, each subcontractor, and each
division, subsidiary, or affiliate of the contractor under a common
control that will perform on the contract.
(d) Solicitation Provisions. Added two solicitation provisions
to ensure contractors understand the methodology for reimbursing
subcontract costs (see comment (4)(c)(11)(c)).
(e) Timecards. Revised the rule to recognize that companies use
both paper-based and electronic timecards (see comment (4)(c)(9)).
(f) Commercial Item Materials. Revised the prescription for
reimbursing commercial items to clarify the commercial catalog or
market prices are subject to negotiation (see comment (4)(c)(4)(b)).
(g) Assignment and Release of Claims. Re-titled the paragraph
previously title ``Assignment'' to ``Assignment and Release of
Claims'' to clarify both topic are covered in the paragraph (see
comment (4)(c)(7)).
(h)Refunds. Deleted the current provision on refunds from the
clause because the provisions duplicate coverage in the Allowable
Cost and Payment clause (see comment (4)(c)(4)(d)).
3. Description of, and an estimate of the number of, small
entities to which the rule will apply or an explanation of why no
such estimate is available.
The changes may 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 T&M
contracting is a common method of acquiring services from small
entities. However, it is not feasible to estimate the number of
small entities impacted.
4. Description of projected reporting, record keeping, and other
compliance requirements of the proposed rule, including an estimate
of the classes of small entities which will be subject to the
requirement and the type of professional skills necessary for
preparation of the report or record.
The prior FAR policies required contractors to maintain records
to support invoices presented to the Government for payment. Such
records included original timecards, the contractor' timekeeping
procedures, distribution of labor, invoices for material, and so
forth. These are standard records maintained by any company, large
or small, and the fact that the contract would require that these
records be made available to the Government should not place any
additional record keeping burden on the entity.
5. Description of any significant alternatives to the rule which
accomplish the stated objectives of applicable statutes and which
minimize any significant economic impact of the proposed rule on
small entities. Significant alternatives to the final rule include:
Not permitting any subcontractor to be paid at the
labor hour rate and reimbursing all subcontractors at actual cost.
Requiring any subcontractor to be listed in the prime
contract as the sole means of authorizing payments of labor for that
subcontractor to be at the labor hour rate specified in the
contract.
Incorporating a list of each Other Direct Cost (ODC)
into each T&M contract that would be authorized for reimbursement
under that contract and prohibiting reimbursement of any other ODC.
Not requiring a list of each Other Direct Cost (ODC)
authorized for reimbursement and permitting any ODC to be
reimbursed.
Interested parties may obtain a copy of the FRFA from the FAR
Secretariat. The FAR Secretariat has submitted a copy of the FRFA to
the Chief Counsel for Advocacy of the Small Business Administration.
C. Paperwork Reduction Act
The Paperwork Reduction Act (Pub. L. 104-13) 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. 3501, et seq.
List of Subjects in 48 CFR Parts 16, 32, and 52
Government procurement.
Dated: December 4, 2006.
Linda K. Nelson,
Deputy Director, Contract Policy Division.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 16, 32, and 52 as set
forth below:
0
1. The authority citation for 48 CFR parts 16, 32, 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 16-TYPES OF CONTRACTS
0
2. Amend section 16.307 by revising paragraph (a)(1) to read as
follows:
16.307 Contract clauses.
(a)(1) The contracting officer shall insert the clause at 52.216-7,
Allowable Cost and Payment, in solicitations and contracts when a cost-
reimbursement contract (other than a facilities contract) or a time-
and-materials contract (other than a contract for a commercial item) is
contemplated. If the contract is with an educational institution,
modify the clause by deleting from paragraph (a) the words ``Subpart
31.2'' and substituting for them ``Subpart 31.3.'' If the contract is
with a State or local government, modify the clause by deleting from
paragraph (a) the words ``Subpart 31.2'' and substituting for them
``Subpart 31.6.'' If the contract is with a nonprofit organization
other than an educational institution, a State or local government, or
a nonprofit organization exempted under OMB Circular No. A-122, modify
the clause by deleting from paragraph (a) the words ``Subpart 31.2''
and substituting for them ``Subpart 31.7.'' If the contract is a time-
and-materials contract, the clause at 52.216-7 applies only to the
portion of the contract that provides for reimbursement of materials
(as defined in the clause at 52.232-7) at actual cost.
* * * * *
0
3. Revise section 16.601 to read as follows:
16.601 Time-and-materials contracts.
(a) Definitions for the purposes of Time-and-Materials Contracts.
Direct materials means those materials that enter directly into the
end product, or that are used or consumed directly in connection with
the furnishing of the end product or service.
Hourly rate means the rate(s) prescribed in the contract for
payment for labor that meets the labor category qualifications of a
labor category specified in the contract that are--
(1) Performed by the contractor;
(2) Performed by the subcontractors; or
(3) Transferred between divisions, subsidiaries, or affiliates of
the contractor under a common control.
Materials means--
(1) Direct materials, including supplies transferred between
divisions, subsidiaries, or affiliates of the contractor under a common
control;
(2) Subcontracts for supplies and incidental services for which
there is not a labor category specified in the contract;
(3) Other direct costs (e.g., incidental services for which there
is not a labor category specified in the contract, travel, computer
usage charges, etc.); and
(4) Applicable indirect costs.
(b) Description. A time-and-materials contract provides for
acquiring supplies or services on the basis of--
(1) Direct labor hours at specified fixed hourly rates that include
wages, overhead, general and administrative expenses, and profit; and
(2) Actual cost for materials (except as provided for in 31.205-
26(e) and (f)).
(c) Application. A time-and-materials contract may be used only
when it is not possible at the time of placing the contract to estimate
accurately the
[[Page 74665]]
extent or duration of the work or to anticipate costs with any
reasonable degree of confidence.
(1) Government surveillance. A time-and-materials contract provides
no positive profit incentive to the contractor for cost control or
labor efficiency. Therefore, appropriate Government surveillance of
contractor performance is required to give reasonable assurance that
efficient methods and effective cost controls are being used.
(2) Fixed hourly rates. (i) The contract shall specify separate
fixed hourly rates that include wages, overhead, general and
administrative expenses, and profit for each category of labor (see
16.601(e)(1)).
(ii) For acquisitions of noncommercial items awarded without
adequate price competition (see 15.403-1(c)(1)), the contract shall
specify separate fixed hourly rates that include wages, overhead,
general and administrative expenses, and profit for each category of
labor to be performed by--
(A) The contractor;
(B) Each subcontractor; and
(C) Each division, subsidiary, or affiliate of the contractor under
a common control.
(iii) For contract actions that are not awarded using competitive
procedures, unless exempt under paragraph (c)(2)(iv) of this section,
the fixed hourly rates for services transferred between divisions,
subsidiaries, or affiliates of the contractor under a common control--
(A) Shall not include profit for the transferring organization; but
(B) May include profit for the prime contractor.
(iv) For contract actions that are not awarded using competitive
procedures, the fixed hourly rates for services that meet the
definition of commercial item at 2.101 that are transferred between
divisions, subsidiaries, or affiliates of the contractor under a common
control may be the established catalog or market rate when--
(A) It is the established practice of the transferring organization
to price interorganizational transfers at other than cost for
commercial work of the contractor or any division, subsidiary or
affiliate of the contractor under a common control; and
(B) The contracting officer has not determined the price to be
unreasonable.
(3) Material handling costs. When included as part of material
costs, material handling costs shall include only costs clearly
excluded from the labor-hour rate. Material handling costs may include
all appropriate indirect costs allocated to direct materials in
accordance with the contractor's usual accounting procedures consistent
with Part 31.
(d) Limitations. A time-and-materials contract may be used-- (1)
only after the contracting officer executes a determination and
findings that no other contract type is suitable, and (2) only if the
contract includes a ceiling price that the contractor exceeds at its
own risk. The contracting officer shall document the contract file to
justify the reasons for and amount of any subsequent change in the
ceiling price. Also see 12.207(b) for further limitations on use of
Time-and-Materials or Labor Hour contracts for acquisition of
commercial items.
(e) Solicitation provisions. (1) The contracting officer shall
insert the provision at 52.216-29, Time-and-Materials/Labor-Hour
Proposal Requirements--Non-Commercial Item Acquisitions With Adequate
Price Competition, in solicitations contemplating use of a Time-and-
Materials or Labor-Hour type of contract for noncommercial items, if
the price is expected to be based on adequate price competition. If
authorized by agency procedures, the contracting officer may amend the
provision to make mandatory one of the three approaches in paragraph
(c) of the provision, and/or to require the identification of all
subcontractors, divisions, subsidiaries, or affiliates included in a
blended labor rate.
(2) The contracting officer shall insert the provision at 52.216-
30, Time-and-Materials/Labor-Hour Proposal Requirements--Non-Commercial
Item Acquisitions without Adequate Price Competition, in solicitations
for noncommercial items contemplating use of a Time-and-Materials or
Labor-Hour type of contract if the price is not expected to be based on
adequate price competition.
(3) The contracting officer shall insert the provision at 52.216-
31, Time-and-Materials/Labor-Hour Proposal Requirements--Commercial
Item Acquisitions, in solicitations contemplating use of a Commercial
Time-and-Materials or Labor-Hour contract.
PART 32--CONTRACT FINANCING
0
4. Amend section 32.111 in paragraph (a)(7) by removing (a)(7)(i) and
redesignating paragraphs (a)(7)(ii) and (iii) as (a)(7)(i) and
(a)(7)(ii), respectively; and by revising the newly designated
paragraph (a)(7)(i) to read as follows:
32.111 Contract clauses for non-commercial purchases.
(a) * * *
(7) * * *
(i) If a labor-hour contract is contemplated, the contracting
officer shall use the clause with its Alternate I.
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
5. Add sections 52.216-29, 52.216-30, and 52.216-31 to read as follows:
52.216-29 Time-and-Materials/Labor-Hour Proposal Requirements--Non-
Commercial Item Acquisition With Adequate Price Competition.
As prescribed in 16.601(e)(1), insert the following provision:
TIME-AND-MATERIALS/LABOR-HOUR PROPOSAL REQUIREMENTS--NON-COMMERCIAL
ITEM ACQUISITION WITH ADEQUATE PRICE COMPETITION (FEB 2007)
(a) The Government contemplates award of a Time-and-Materials or
Labor-Hour type of contract resulting from this solicitation.
(b) The offeror must specify fixed hourly rates in its offer
that include wages, overhead, general and administrative expenses,
and profit. The offeror must specify whether the fixed hourly rate
for each labor category applies to labor performed by--
(1) The offeror;
(2) Subcontractors; and/or
(3) Divisions, subsidiaries, or affiliates of the offeror under
a common control;
(c) The offeror must establish fixed hourly rates using--
(1) Separate rates for each category of labor to be performed by
each subcontractor and for each category of labor to be performed by
the offeror, and for each category of labor to be transferred
between divisions, subsidiaries, or affiliates of the offeror under
a common control;
(2) Blended rates for each category of labor to be performed by
the offeror, including labor transferred between divisions,
subsidiaries, or affiliates of the offeror under a common control,
and all subcontractors; or
(3) Any combination of separate and blended rates for each
category of labor to be performed by the offeror, affiliates of the
offeror under a common control, and subcontractors.
(End of provision)
52.216-30 Time-and-Materials/Labor-Hour Proposal Requirements--Non-
Commercial Item Acquisition without Adequate Price Competition.
As prescribed in 16.601(e)(2), insert the following provision:
[[Page 74666]]
TIME-AND-MATERIALS/LABOR-HOUR PROPOSAL REQUIREMENTS--NON-COMMERCIAL
ITEM ACQUISITION WITHOUT ADEQUATE PRICE COMPETITION (FEB 2007)
(a) The Government contemplates award of a Time-and-Materials or
Labor-Hour type of contract resulting from this solicitation.
(b) The offeror must specify separate fixed hourly rates in its
offer that include wages, overhead, general and administrative
expenses, and profit for each category of labor to be performed by--
(1) The offeror;
(2) Each subcontractor; and
(3) Each division, subsidiary, or affiliate of the offeror under
a common control.
(c) Unless exempt under paragraph (d) of this provision, the
fixed hourly rates for services transferred between divisions,
subsidiaries, or affiliates of the offeror under a common control--
(1) Shall not include profit for the transferring organization;
but
(2) May include profit for the prime Contractor.
(d) The fixed hourly rates for services that meet the definition
of commercial item at 2.101 that are transferred between divisions,
subsidiaries, or affiliates of the offeror under a common control
may be the established catalog or market rate when it is the
established practice of the transferring organization to price
interorganizational transfers at other than cost for commercial work
of the offeror or any division, subsidiary or affiliate of the
offeror under a common control.
(End of provision)
52.216-31 Time-and-Materials/Labor-Hour Proposal Requirements--
Commercial Item Acquisition.
As prescribed in 16.601(e)(1), insert the following provision:
TIME-AND-MATERIALS/LABOR-HOUR PROPOSAL REQUIREMENTS--COMMERCIAL ITEM
ACQUISITION (FEB 2007)
(a) The Government contemplates award of a Time-and-Materials or
Labor-Hour type of contract resulting from this solicitation.
(b) The offeror must specify fixed hourly rates in its offer
that include wages, overhead, general and administrative expenses,
and profit. The offeror must specify whether the fixed hourly rate
for each labor category applies to labor performed by--
(1) The offeror;
(2) Subcontractors; and/or
(3) Divisions, subsidiaries, or affiliates of the offeror under
a common control.
(End of provision)
0
6. Revise section 52.232-7 to read as follows:
52.232-7 Payments under Time-and-Materials and Labor-Hour Contracts.
As prescribed in 32.111(a)(7), insert the following clause:
PAYMENTS UNDER TIME-AND-MATERIALS AND LABOR-HOUR CONTRACTS (FEB 2007)
The Government will pay the Contractor as follows upon the
submission of vouchers approved by the Contracting Officer or the
authorized representative:
(a) Hourly rate. (1) Hourly rate means the rate(s) prescribed in
the contract for payment for labor that meets the labor category
qualifications of a labor category specified in the contract that
are--
(i) Performed by the Contractor;
(ii) Performed by the subcontractors; or
(iii) Transferred between divisions, subsidiaries, or affiliates
of the Contractor under a common control.
(2) The amounts shall be computed by multiplying the appropriate
hourly rates prescribed in the Schedule by the number of direct
labor hours performed.
(3) The hourly rates shall be paid for all labor performed on
the contract that meets the labor qualifications specified in the
contract. Labor hours incurred to perform tasks for which labor
qualifications were specified in the contract will not be paid to
the extent the work is performed by employees that do not meet the
qualifications specified in the contract, unless specifically
authorized by the Contracting Officer.
(4) The hourly rates shall include wages, indirect costs,
general and administrative expense, and profit. Fractional parts of
an hour shall be payable on a prorated basis.
(5) Vouchers may be submitted once each month (or at more
frequent intervals, if approved by the Contracting Officer), to the
Contracting Officer or authorized representative. The Contractor
shall substantiate vouchers (including any subcontractor hours
reimbursed at the hourly rate in the schedule) by evidence of actual
payment and by--
(i) Individual daily job timekeeping records;
(ii) Records that verify the employees meet the qualifications
for the labor categories specified in the contract; or
(iii) Other substantiation approved by the Contracting Officer.
(6) Promptly after receipt of each substantiated voucher, the
Government shall, except as otherwise provided in this contract, and
subject to the terms of paragraph (e) of this clause, pay the
voucher as approved by the Contracting Officer or authorized
representative.
(7) Unless otherwise prescribed in the Schedule, the Contracting
Officer may unilaterally issue a contract modification requiring the
Contractor to withhold amounts from its billings until a reserve is
set aside in an amount that the Contracting Officer considers
necessary to protect the Government's interests. The Contracting
Officer may require a withhold of 5 percent of the amounts due under
paragraph (a) of this clause, but the total amount withheld for the
contract shall not exceed $50,000. The amounts withheld shall be
retained until the Contractor executes and delivers the release
required by paragraph (f) of this clause.
(8) Unless the Schedule prescribes otherwise, the hourly rates
in the Schedule shall not be varied by virtue of the Contractor
having performed work on an overtime basis. If no overtime rates are
provided in the Schedule and overtime work is approved in advance by
the Contracting Officer, overtime rates shall be negotiated. Failure
to agree upon these overtime rates shall be treated as a dispute
under the Disputes clause of this contract. If the Schedule provides
rates for overtime, the premium portion of those rates will be
reimbursable only to the extent the overtime is approved by the
Contracting Officer.
(b) Materials. (1) For the purposes of this clause--
(i) Direct materials means those materials that enter directly
into the end product, or that are used or consumed directly in
connection with the furnishing of the end product or service.
(ii) Materials means--
(A) Direct materials, including supplies transferred between
divisions, subsidiaries, or affiliates of the Contractor under a
common control;
(B) Subcontracts for supplies and incidental services for which
there is not a labor category specified in the contract;
(C) Other direct costs (e.g., incidental services for which
there is not a labor category specified in the contract, travel,
computer usage charges, etc.); and
(D) Applicable indirect costs.
(2) If the Contractor furnishes its own materials that meet the
definition of a commercial item at 2.101, the price to be paid for
such materials shall not exceed the Contractor's established catalog
or market price, adjusted to reflect the--
(i) Quantities being acquired; and
(ii) Actual cost of any modifications necessary because of
contract requirements.
(3) Except as provided for in paragraph (b)(2) of this clause,
the Government will reimburse the Contractor for allowable cost of
materials provided the Contractor--
(i) Has made payments for materials in accordance with the terms
and conditions of the agreement or invoice; or
(ii) Ordinarily makes these payments within 30 days of the
submission of the Contractor's payment request to the Government and
such payment is in accordance with the terms and conditions of the
agreement or invoice.
(4) Payment for materials is subject to the Allowable Cost and
Payment clause of this contract. The Contracting Officer will
determine allowable costs of materials in accordance with Subpart
31.2 of the Federal Acquisition Regulation (FAR) in effect on the
date of this contract.
(5) The Contractor may include allocable indirect costs and
other direct costs to the extent they are--
(i) Comprised only of costs that are clearly excluded from the
hourly rate;
(ii) Allocated in accordance with the Contractor's written or
established accounting practices; and
(iii) Indirect costs are not applied to subcontracts that are
paid at the hourly rates.
(6) To the extent able, the Contractor shall--
(i) Obtain materials at the most advantageous prices available
with due regard to securing prompt delivery of satisfactory
materials; and
[[Page 74667]]
(ii) Take all cash and trade discounts, rebates, allowances,
credits, salvage, commissions, and other benefits. When unable to
take advantage of the benefits, the Contractor shall promptly notify
the Contracting Officer and give the reasons. The Contractor shall
give credit to the Government for cash and trade discounts, rebates,
scrap, commissions, and other amounts that have accrued to the
benefit of the Contractor, or would have accrued except for the
fault or neglect of the Contractor. The Contractor shall not deduct
from gross costs the benefits lost without fault or neglect on the
part of the Contractor, or lost through fault of the Government.
(7) Except as provided for in 31.205-26(e) and (f), the
Government will not pay profit or fee to the prime Contractor on
materials.
(c) If the Contractor enters into any subcontract that requires
consent under the clause at 52.244-2, Subcontracts, without
obtaining such consent, the Government is not required to reimburse
the Contractor for any costs incurred under the subcontract prior to
the date the Contractor obtains the required consent. Any
reimbursement of subcontract costs incurred prior to the date the
consent was obtained shall be at the sole discretion of the
Government.
(d) Total cost. It is estimated that the total cost to the
Government for the performance of this contract shall not exceed the
ceiling price set forth in the Schedule, and the Contractor agrees
to use its best efforts to perform the work specified in the
Schedule and all obligations under this contract within such ceiling
price. If at any time the Contractor has reason to believe that the
hourly rate payments and material costs that will accrue in
performing this contract in the next succeeding 30 days, if added to
all other payments and costs previously accrued, will exceed 85
percent of the ceiling price in the Schedule, the Contractor shall
notify the Contracting Officer giving a revised estimate of the
total price to the Government for performing this contract with
supporting reasons and documentation. If at any time during
performing this contract, the Contractor has reason to believe that
the total price to the Government for performing this contract will
be substantially greater or less than the then stated ceiling price,
the Contractor shall so notify the Contracting Officer, giving a
revised estimate of the total price for performing this contract,
with supporting reasons and documentation. If at any time during
performing this contract, the Government has reason to believe that
the work to be required in performing this contract will be
substantially greater or less than the stated ceiling price, the
Contracting Officer will so advise the Contractor, giving the then
revised estimate of the total amount of effort to be required under
the contract.
(e) Ceiling price. The Government will not be obligated to pay
the Contractor any amount in excess of the ceiling price in the
Schedule, and the Contractor shall not be obligated to continue
performance if to do so would exceed the ceiling price set forth in
the Schedule, unless and until the Contracting Officer notifies the
Contractor in writing that the ceiling price has been increased and
specifies in the notice a revised ceiling that shall constitute the
ceiling price for performance under this contract. When and to the
extent that the ceiling price set forth in the Schedule has been
increased, any hours expended and material costs incurred by the
Contractor in excess of the ceiling price before the increase shall
be allowable to the same extent as if the hours expended and
material costs had been incurred after the increase in the ceiling
price.
(f) Audit. At any time before final payment under this contract,
the Contracting Officer may request audit of the vouchers and
supporting documentation. Each payment previously made shall be
subject to reduction to the extent of amounts, on preceding
vouchers, that are found by the Contracting Officer or authorized
representative not to have been properly payable and shall also be
subject to reduction for overpayments or to increase for
underpayments. Upon receipt and approval of the voucher designated
by the Contractor as the ``completion voucher'' and supporting
documentation, and upon compliance by the Contractor with all terms
of this contract (including, without limitation, terms relating to
patents and the terms of paragraphs (f) and (g) of this clause), the
Government shall promptly pay any balance due the Contractor. The
completion voucher, and supporting documentation, shall be submitted
by the Contractor as promptly as practicable following completion of
the work under this contract, but in no event later than 1 year (or
such longer period as the Contracting Officer may approve in
writing) from the date of completion.
(g) Assignment and Release of Claims. The Contractor, and each
assignee under an assignment entered into under this contract and in
effect at the time of final payment under this contract, shall
execute and deliver, at the time of and as a condition precedent to
final payment under this contract, a release discharging the
Government, its officers, agents, and employees of and from all
liabilities, obligations, and claims arising out of or under this
contract, subject only to the following exceptions:
(1) Specified claims in stated amounts, or in estimated amounts
if the amounts are not susceptible of exact statement by the
Contractor.
(2) Claims, together with reasonable incidental expenses, based
upon the liabilities of the Contractor to third parties arising out
of performing this contract, that are not known to the Contractor on
the date of the execution of the release, and of which the
Contractor gives notice in writing to the Contracting Officer not
more than 6 years after the date of the release or the date of any
notice to the Contractor that the Government is prepared to make
final payment, whichever is earlier.
(3) Claims for reimbursement of costs (other than expenses of
the Contractor by reason of its indemnification of the Government
against patent liability), including reasonable incidental expenses,
incurred by the Contractor under the terms of this contract relating
to patents.
(h) Interim payments on contracts for other than services. (1)
Interim payments made prior to the final payment under the contract
are contract financing payments. Contract financing payments are not
subject to the interest penalty provisions of the Prompt Payment
Act.
(2) The designated payment office will make interim payments for
contract financing on the ---------- [Contracting Officer insert day
as prescribed by agency head; if not prescribed, insert ``30th'']
day after the designated billing office receives a proper payment
request. In the event that the Government requires an audit or other
review of a specific payment request to ensure compliance with the
terms and conditions of the contract, the designated payment office
is not compelled to make payment by the specified due date.
(i) Interim payments on contracts for services. For interim
payments made prior to the final payment under this contract, the
Government will make payment in accordance with the Prompt Payment
Act (31 U.S.C. 3903) and prompt payment regulations at 5 CFR part
1315.
(End of Clause)
Alternate I (FEB 2007). If a labor-hour contract is
contemplated, the Contracting Officer shall add the following
paragraph (i) to the basic clause:
(i) The terms of this clause that govern reimbursement for
materials furnished are considered to have been deleted.
[FR Doc. 06-9610 Filed 12-6-06; 8:45 am]
BILLING CODE 6820-EP-S