[Federal Register Volume 63, Number 119 (Monday, June 22, 1998)]
[Rules and Regulations]
[Pages 34064-34072]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-16114]
[[Page 34064]]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 11, 19, 52, and 53
[FAC 97-05; FAR Cases 89-042 and 97-300; Item III]
RINs 9000-AD20 and 9000-AH53
Federal Acquisition Regulation; Liquidated Damages
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed and interim rules adopted as final with changes.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed to convert the proposed and
interim rules to final with changes. This final rule amends the Federal
Acquisition Regulation (FAR) to clarify policy on liquidated damages
and commercial subcontracting plans and to implement OFPP Policy Letter
95-1, Subcontracting Plans for Companies Supplying Commercial Items.
The interim rule published as FAR case 89-042 at 54 FR 30708, July 21,
1989, has been merged with this final rule. This regulatory action was
not subject to Office of Management and Budget review under Executive
Order 12866, dated September 30, 1993, and is not a major rule under 5
U.S.C. 804.
EFFECTIVE DATE: August 21, 1998.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC 20405, (202) 501-4755, for information
pertaining to status or publication schedules. For clarification of
content, contact Ms. Victoria Moss, Procurement Analyst, at (202) 501-
4764. Please cite FAC 97-05, FAR case 97-300.
SUPPLEMENTARY INFORMATION:
A. Background
An interim rule, under FAR Case 89-042 (Liquidated Damages), was
published on July 21, 1989 (54 FR 30708), to require a prime contractor
to pay liquidated damages upon a finding of a lack of good faith effort
to meet small business subcontracting goals. The rule implemented
Section 304 of the Business Opportunity Development Reform Act of 1988,
Pub. L. 100-656. The interim rule is hereby adopted as final with
changes and merged with this final rule.
A proposed rule containing revisions to the interim rule was
published on April 11, 1997 (62 FR 17960). The revisions in the
proposed rule resulted from the public comments received on the interim
rule, and from the requirements of OFPP Policy Letter 95-1,
Subcontracting Plans for Companies Supplying Commercial Items.
Eight sources submitted comments in response to the proposed rule.
All comments were considered in developing this final rule.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because small business concerns
are exempt from subcontracting plan requirements.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose recordkeeping or information collection
requirements, or collections of information from offerors, contractors,
or members of the public which 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 11, 19, 52, and 53
Government procurement.
Dated: June 11, 1998.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Interim Rule Adopted as Final with Changes
Accordingly, the interim rule published as FAR Case 89-042 amending
48 CFR Parts 19 and 52, which was published at 54 FR 30708, July 21,
1989, is hereby adopted as final and merged with this final rule with
the following changes:
1. The authority citation for 48 CFR Parts 11, 19, 52, and 53
continues to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 11--DESCRIBING AGENCY NEEDS
2. Section 11.501 is revised to read as follows:
11.501 General.
This subpart provides policies and procedures for the use of
liquidated damages clauses in solicitations and contracts for supplies,
services, and construction, except for the Liquidated Damages--
Subcontracting Plan clause at 52.219-16, which may be applied pursuant
to 19.705-7.
PART 19--SMALL BUSINESS PROGRAMS
3. Section 19.701 is revised to read as follows:
19.701 Definitions.
Commercial plan means a subcontracting plan (including goals) that
covers the offeror's fiscal year and that applies to the entire
production of commercial items sold by either the entire company or a
portion thereof (e.g., division, plant, or product line).
Failure to make a good faith effort to comply with the
subcontracting plan means willful or intentional failure to perform in
accordance with the requirements of the subcontracting plan, or willful
or intentional action to frustrate the plan.
Individual contract plan means a subcontracting plan that covers
the entire contract period (including option periods), applies to a
specific contract, and has goals that are based on the offeror's
planned subcontracting in support of the specific contract, except that
indirect costs incurred for common or joint purposes may be allocated
on a prorated basis to the contract.
Master plan means a subcontracting plan that contains all the
required elements of an individual contract plan, except goals, and may
be incorporated into individual contract plans, provided the master
plan has been approved.
Small business subcontractor means any concern that--
(a) In connection with subcontracts of $10,000 or less, has a
number of employees, including its affiliates, that does not exceed 500
persons; and
(b) In connection with subcontracts exceeding $10,000, has a number
of employees or average annual receipts, including its affiliates, that
does not exceed the size standard under 19.102 for the product or
service it is providing on the subcontract.
Subcontract means any agreement (other than one involving an
employer-employee relationship) entered into by a Government prime
contractor or subcontractor calling for supplies and/or services
required for performance of the contract, contract modification, or
subcontract.
4. Section 19.702 is amended by revising paragraph (a) introductory
text,
[[Page 34065]]
the first sentences of (a)(1) and (a)(2); and paragraph (b)(4) to read
as follows:
19.702 Statutory requirements.
* * * * *
(a) Except as stated in paragraph (b) of this section, Section 8(d)
of the Small Business Act (15 U.S.C. 637(d)) imposes the following
requirements regarding subcontracting with small businesses and small
business subcontracting plans:
(1) In negotiated acquisitions, each solicitation of offers to
perform a contract or contract modification, that individually is
expected to exceed $500,000 ($1,000,000 for construction) and that has
subcontracting possibilities, shall require the apparently successful
offeror to submit an acceptable subcontracting plan. * * *
(2) In sealed bidding acquisitions, each invitation for bids to
perform a contract or contract modification, that individually is
expected to exceed $500,000 ($1,000,000 for construction) and that has
subcontracting possibilities, shall require the bidder selected for
award to submit a subcontracting plan. * * *
(b) * * *
(4) For modifications to contracts within the general scope of the
contract that do not contain the clause at 52.219-8, Utilization of
Small, Small Disadvantaged and Women-Owned Small Business Concerns (or
equivalent prior clauses, e.g., contracts awarded before the enactment
of Pub. L. 95-507).
* * * * *
5. Section 19.703 is amended in paragraph (a)(2) by removing ``13
CFR 124.601--124.610'' and inserting in its place ``13 CFR 124.601
through 124.610''; and in paragraph (b) by revising the first sentence
to read as follows:
19.703 Eligibility requirements for participating in the program.
* * * * *
(b) A contractor acting in good faith may rely on the written
representation of its subcontractor regarding the subcontractor's
status as a small business concern, a small disadvantaged business
concern, or a women-owned small business concern. * * *
6. Section 19.704 is amended--
(a) By redesignating paragraphs (a)(2) through (a)(6) as (a)(7)
through (a)(11), respectively, and adding new paragraphs (a)(2) through
(a)(6);
(b) In newly designated (a)(8) by removing the word ``will'' the
second time it appears;
(c) By revising newly designated paragraphs (a)(9), 10) and (11),
the first sentence of paragraph (b), and (c); and
(d) By adding paragraph (d). The revised and added text reads as
follows:
19.704 Subcontracting plan requirements.
(a) * * *
(2) A statement of the total dollars planned to be subcontracted
and a statement of the total dollars planned to be subcontracted to
small, small disadvantaged and women-owned small business concerns;
(3) A description of the principal types of supplies and services
to be subcontracted and an identification of the types planned for
subcontracting to small, small disadvantaged and women-owned small
business concerns;
(4) A description of the method used to develop the subcontracting
goals;
(5) A description of the method used to identify potential sources
for solicitation purposes;
(6) A statement as to whether or not the offeror included indirect
costs in establishing subcontracting goals, and a description of the
method used to determine the proportionate share of indirect costs to
be incurred with small, small disadvantaged and women-owned small
business concerns;
* * * * *
(9) Assurances that the offeror will include the clause at 52.219-
8, Utilization of Small, Small Disadvantaged and Women-Owned Small
Business Concerns (see 19.708(a)), in all subcontracts that offer
further subcontracting opportunities, and that the offeror will require
all subcontractors (except small business concerns) that receive
subcontracts in excess of $500,000 ($1,000,000 for construction) to
adopt a plan that complies with the requirements of the clause at
52.219-9, Small, Small Disadvantaged and Women-Owned Small Business
Subcontracting Plan (see 19.708(b));
(10) Assurances that the offeror will--
(i) Cooperate in any studies or surveys as may be required;
(ii) Submit periodic reports so that the Government can determine
the extent of compliance by the offeror with the subcontracting plan;
(iii) Submit Standard Form (SF) 294, Subcontracting Report for
Individual Contracts, and SF 295, Summary Subcontract Report, following
the instructions on the forms or as provided in agency regulations; and
(iv) Ensure that its subcontractors agree to submit SF 294 and SF
295; and
(11) A description of the types of records that will be maintained
concerning procedures adopted to comply with the requirements and goals
in the plan, including establishing source lists; and a description of
the offeror's efforts to locate small, small disadvantaged and women-
owned small business concerns and to award subcontracts to them.
(b) Contractors may establish, on a plant or division-wide basis, a
master plan (see 19.701) that contains all the elements required by the
clause at 52.219-9, Small, Small Disadvantaged and Women-Owned Small
Business Subcontracting Plan, except goals. * * *
(c) For multiyear contracts or contracts containing options, the
cumulative value of the basic contract and all options is considered in
determining whether a subcontracting plan is necessary (see 19.705-
2(a)). If a plan is necessary and the offeror is submitting an
individual contract plan, the plan shall contain all the elements
required by paragraph (a) of this section and shall contain separate
statements and goals for the basic contract and for each option.
(d) A commercial plan (as defined in 19.701) is the preferred type
of subcontracting plan for contractors furnishing commercial items. The
contractor shall--
(1) Submit the commercial plan to either the first contracting
officer awarding a contract subject to the plan during the contractor's
fiscal year, or, if the contractor has ongoing contracts with
commercial plans, to the contracting officer responsible for the
contract with the latest completion date. The contracting officer shall
negotiate the commercial plan for the Government. The approved
commercial plan shall remain in effect during the contractor's fiscal
year for all Government contracts in effect during that period; and
(2) Submit a new commercial plan, 30 working days before the end of
the fiscal year, to the contracting officer responsible for the
uncompleted Government contract with the latest completion date. The
contractor must provide to each contracting officer responsible for an
ongoing contract subject to the plan, the identity of the contracting
officer that will be negotiating the new plan. When the new commercial
plan is approved, the contractor shall provide a copy of the approved
plan to each contracting officer responsible for an ongoing contract
that is subject to the plan.
19.705-1 [Amended]
7. Section 19.705-1 is amended in the first sentence by removing
``award fee'' and inserting ``award-fee'' in its place.
[[Page 34066]]
8. Section 19.705-4 is amended--
(a) By revising the first and second sentences of paragraph (b);
(b) By revising paragraph (c);
(c) By revising paragraph (d)(1); and
(d) By redesignating paragraphs (d)(3) through (d)(6) as (d)(4)
through (d)(7), respectively, and adding a new paragraph (d)(3); and by
revising newly designated (d)(5). The new and revised text reads as
follows:
19.705-4 Reviewing the subcontracting plan.
* * * * *
(b) If, under a sealed bid solicitation, a bidder submits a plan
that does not cover each of the 11 required elements (see 19.704), the
contracting officer shall advise the bidder of the deficiency and
request submission of a revised plan by a specific date. If the bidder
does not submit a plan that incorporates the required elements within
the time allotted, the bidder shall be ineligible for award. * * *
(c) In negotiated acquisitions, the contracting officer shall
determine whether the plan is acceptable based on the negotiation of
each of the 11 elements of the plan (see 19.704). Subcontracting goals
should be set at a level that the parties reasonably expect can result
from the offeror expending good faith efforts to use small, small
disadvantaged, and women-owned small business subcontractors to the
maximum practicable extent. The contracting officer shall take
particular care to ensure that the offeror has not submitted
unreasonably low goals to minimize exposure to liquidated damages and
to avoid the administrative burden of substantiating good faith
efforts. Additionally, particular attention should be paid to the
identification of steps that, if taken, would be considered a good
faith effort. No goal should be negotiated upward if it is apparent
that a higher goal will significantly increase the Government's cost or
seriously impede the attainment of acquisition objectives. An incentive
subcontracting clause (see 52.219-10, Incentive Subcontracting
Program), may be used when additional and unique contract effort, such
as providing technical assistance, could significantly increase
subcontract awards to small, small disadvantaged or women-owned small
businesses.
(d) * * *
(1) Obtain information available from the cognizant contract
administration office, as provided for in 19.706(a), and evaluate the
offeror's past performance in awarding subcontracts for the same or
similar products or services to small, small disadvantaged and women-
owned small business concerns. If information is not available on a
specific type of product or service, evaluate the offeror's overall
past performance and consider the performance of other contractors on
similar efforts.
* * * * *
(3) Ensure that the subcontracting goals are consistent with the
offeror's cost or pricing data or information other than cost or
pricing data.
* * * * *
(5) Evaluate subcontracting potential, considering the offeror's
make-or-buy policies or programs, the nature of the supplies or
services to be subcontracted, the known availability of small, small
disadvantaged and women-owned small business concerns in the
geographical area where the work will be performed, and the potential
contractor's long-standing contractual relationship with its suppliers.
* * * * *
9. Section 19.705-6 is amended by revising the introductory text
and paragraphs (b) and (g) to read as follows:
19.705-6 Postaward responsibilities of the contracting officer.
After a contract or contract modification containing a
subcontracting plan is awarded, the contracting officer who approved
the plan is responsible for the following:
* * * * *
(b) Forwarding a copy of each commercial plan and any associated
approvals to the Assistant Regional Administrator for Procurement
Assistance in the SBA region where the contractor's headquarters is
located.
* * * * *
(g) Taking action to enforce the terms of the contract upon receipt
of a notice under 19.706(f).
10. Section 19.705-7 is amended by revising paragraphs (b) and (c);
the last sentence of paragraph (d) and paragraph (f); and by adding
paragraph (h) to read as follows:
19.705-7 Liquidated damages.
* * * * *
(b) The amount of damages attributable to the contractor's failure
to comply shall be an amount equal to the actual dollar amount by which
the contractor failed to achieve each subcontracting goal.
(c) If, at completion of the basic contract or any option, or in
the case of a commercial plan, at the close of the fiscal year for
which the plan is applicable, a contractor has failed to meet its
subcontracting goals, the contracting officer shall review all
available information for an indication that the contractor has not
made a good faith effort to comply with the plan. If no such indication
is found, the contracting officer shall document the file accordingly.
If the contracting officer decides in accordance with paragraph (d) of
this subsection that the contractor failed to make a good faith effort
to comply with its subcontracting plan, the contracting officer shall
give the contractor written notice specifying the failure, advising the
contractor of the possibility that the contractor may have to pay to
the Government liquidated damages, and providing a period of 15 working
days (or longer period as necessary) within which to respond. The
notice shall give the contractor an opportunity to demonstrate what
good faith efforts have been made before the contracting officer issues
the final decision, and shall further state that failure of the
contractor to respond may be taken as an admission that no valid
explanation exists.
(d) * * * However, when considered in the context of the
contractor's total effort in accordance with its plan, the following,
though not all inclusive, may be considered as indicators of a failure
to make a good faith effort: a failure to attempt to identify, contact,
solicit, or consider for contract award small, small disadvantaged or
women-owned small business concerns; a failure to designate and
maintain a company official to administer the subcontracting program
and monitor and enforce compliance with the plan; a failure to submit
Standard Form (SF) 294, Subcontracting Report for Individual Contracts,
or SF 295, Summary Subcontract Report, in accordance with the
instructions on the forms or as provided in agency regulations; a
failure to maintain records or otherwise demonstrate procedures adopted
to comply with the plan; or the adoption of company policies or
procedures that have as their objectives the frustration of the
objectives of the plan.
* * * * *
(f) With respect to commercial plans approved under the clause at
52.219-9, Small, Small Disadvantaged and Women-Owned Small Business
Subcontracting Plan, the contracting officer that approved the plan
shall--
(1) Perform the functions of the contracting officer under this
subsection on behalf of all agencies with contracts covered by the
commercial plan;
(2) Determine whether or not the goals in the commercial plan were
achieved and, if they were not achieved, review all available
information for an indication that the contractor has not
[[Page 34067]]
made a good faith effort to comply with the plan, and document the
results of the review;
(3) If a determination is made to assess liquidated damages, in
order to calculate and assess the amount of damages, the contracting
officer shall ask the contractor to provide--
(i) Contract numbers for the Government contracts subject to the
plan;
(ii) The total Government sales during the contractor's fiscal
year; and
(iii) The amount of payments made under the Government contracts
subject to that plan that contributed to the contractor's total sales
during the contractor's fiscal year; and
(4) When appropriate, assess liquidated damages on the Government's
behalf, based on the pro rata share of subcontracting attributable to
the Government contracts. For example: The contractor's total actual
sales were $50 million and its actual subcontracting was $20 million.
The Government's total payments under contracts subject to the plan
contributing to the contractor's total sales were $5 million, which
accounted for 10 percent of the contractor's total sales. Therefore,
the pro rata share of subcontracting attributable to the Government
contracts would be 10 percent of $20 million, or $2 million. To
continue the example, if the contractor failed to achieve its small
business goal by 1 percent, the liquidated damages would be calculated
as 1 percent of $2 million, or $20,000. The contracting officer shall
make similar calculations for each category of small business where the
contractor failed to achieve its goal and the sum of the dollars for
all of the categories equals the amount of the liquidated damages to be
assessed. A copy of the contracting officer's final decision assessing
liquidated damages shall be provided to other contracting officers with
contracts subject to the commercial plan.
* * * * *
(h) Every contracting officer with a contract that is subject to a
commercial plan shall include in the contract file a copy of the
approved plan and a copy of the final decision assessing liquidating
damages, if applicable.
11. Section 19.706 is amended in paragraph (a) by removing the
paragraph designation ``(a)''; by removing paragraph (b); by
redesignating (a)(1) through (a)(6) as (a) through (f), respectively;
in newly designated (e) by removing ``and'' at the end; in newly
designated (f) by removing the period at the end and inserting ``;
and''; and by adding (g) to read as follows:
19.706 Responsibilities of the cognizant administrative contracting
officer.
* * * * *
(g) Immediate notice that performance under a contract is complete,
that the goals were or were not met, and, if not met, whether there is
any indication of a lack of a good faith effort to comply with the
subcontracting plan.
12. Section 19.708 is amended by revising paragraph (b)(2); in the
first sentence of (c)(1) by removing ``(see 19.702(a)(1))'' and
inserting in its place ``(see 19.702)''; and in the second sentence of
(c)(2) by removing ``award fee'' and inserting in its place ``award-
fee''. The revised text reads as follows:
19.708 Solicitation provisions and contract clauses.
* * * * *
(b) ** * *
(2) The contracting officer shall insert the clause at 52.219-16,
Liquidated Damages--Subcontracting Plan, in all solicitations and
contracts containing the clause at 52.219-9, Small, Small Disadvantaged
and Women-Owned Small Business Subcontracting Plan, or the clause with
its Alternate I or II.
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
13. Section 52.219-9 is amended by revising the clause date and
paragraphs (b), (d)(2)(i), (d)(9), (d)(10), the first sentence of
(d)(11) introductory text, and the second sentence of (d)(11)(vi); in
the second sentence of (e)(1) by revising ``contractor's'' to read
``Contractor's''; and by revising (f) introductory text and (g). The
revised text reads as follows:
52.219-9 Small, Small Disadvantaged and Women-Owned Small Business
Subcontracting Plan.
* * * * *
SMALL, SMALL DISADVANTAGED AND WOMEN-OWNED SMALL BUSINESS
SUBCONTRACTING PLAN (AUG 1998)
* * * * *
(b) Definitions. As used in this clause--
Commercial item means a product or service that satisfies the
definition of commercial item in section 2.101 of the Federal
Acquisition Regulation.
Commercial plan means a subcontracting plan (including goals)
that covers the offeror's fiscal year and that applies to the entire
production of commercial items sold by either the entire company or
a portion thereof (e.g., division, plant, or product line).
Individual contract plan means a subcontracting plan that covers
the entire contract period (including option periods), applies to a
specific contract, and has goals that are based on the offeror's
planned subcontracting in support of the specific contract, except
that indirect costs incurred for common or joint purposes may be
allocated on a prorated basis to the contract.
Master plan means a subcontracting plan that contains all the
required elements of an individual contract plan, except goals, and
may be incorporated into individual contract plans, provided the
master plan has been approved.
Subcontract means any agreement (other than one involving an
employer-employee relationship) entered into by a Federal Government
prime Contractor or subcontractor calling for supplies or services
required for performance of the contract or subcontract.
* * * * *
(d) * * *
(2) * * *
(i) Total dollars planned to be subcontracted for an individual
contract plan; or the offeror's total projected sales, expressed in
dollars, and the total value of projected subcontracts to support
the sales for a commercial plan;
* * * * *
(9) Assurances that the offeror will include the clause in this
contract entitled ``Utilization of Small, Small Disadvantaged and
Women-Owned Small Business Concerns'' in all subcontracts that offer
further subcontracting opportunities, and that the offeror will
require all subcontractors (except small business concerns) that
receive subcontracts in excess of $500,000 ($1,000,000 for
construction of any public facility) to adopt a subcontracting plan
that complies with the requirements of this clause.
(10) Assurances that the offeror will--
(i) Cooperate in any studies or surveys as may be required;
(ii) Submit periodic reports so that the Government can
determine the extent of compliance by the offeror with the
subcontracting plan;
(iii) Submit Standard Form (SF) 294, Subcontracting Report for
Individual Contracts, and/or SF 295, Summary Subcontract Report,
following the instructions on the forms or as provided in agency
regulations; and
(iv) Ensure that its subcontractors agree to submit SF 294 and
SF 295.
(11) A description of the types of records that will be
maintained concerning procedures that have been adopted to comply
with the requirements and goals in the plan, including establishing
source lists; and a description of the offeror's efforts to locate
small, small disadvantaged and women-owned small business concerns
and award subcontracts to them. * * *
* * * * *
(vi) * * * Contractors having commercial plans need not comply
with this requirement.
* * * * *
(f) A master plan on a plant or division-wide basis that
contains all the elements required by paragraph (d) of this clause,
except goals, may be incorporated by reference as a part of the
subcontracting plan
[[Page 34068]]
required of the offeror by this clause; provided--
* * * * *
(g) A commercial plan is the preferred type of subcontracting
plan for contractors furnishing commercial items. The commercial
plan shall relate to the offeror's planned subcontracting generally,
for both commercial and Government business, rather than solely to
the Government contract. Commercial plans are also preferred for
subcontractors that provide commercial items under a prime contract,
whether or not the prime contractor is supplying a commercial item.
* * * * *
(End of clause)
* * * * *
14. Section 52.219-16 is amended by revising the clause date,
paragraph (b), the first sentence of (c), and paragraph
(d) to read as follows:
52.219-16 Liquidated Damages--Subcontracting Plan.
* * * * *
LIQUIDATED DAMAGES--SUBCONTRACTING PLAN (AUG 1998)
* * * * *
(b) Performance shall be measured by applying the percentage
goals to the total actual subcontracting dollars or, if a commercial
plan is involved, to the pro rata share of actual subcontracting
dollars attributable to Government contracts covered by the
commercial plan. If, at contract completion or, in the case of a
commercial plan, at the close of the fiscal year for which the plan
is applicable, the Contractor has failed to meet its subcontracting
goals and the Contracting Officer decides in accordance with
paragraph (c) of this clause that the Contractor failed to make a
good faith effort to comply with its subcontracting plan,
established in accordance with the clause in this contract entitled
``Small, Small Disadvantaged and Women-Owned Small Business
Subcontracting Plan,'' the Contractor shall pay the Government
liquidated damages in an amount stated. The amount of probable
damages attributable to the Contractor's failure to comply shall be
an amount equal to the actual dollar amount by which the Contractor
failed to achieve each subcontract goal.
(c) Before the Contracting Officer makes a final decision that
the Contractor has failed to make such good faith effort, the
Contracting Officer shall give the Contractor written notice
specifying the failure and permitting the Contractor to demonstrate
what good faith efforts have been made and to discuss the matter. *
* *
(d) With respect to commercial plans, the Contracting Officer
who approved the plan will perform the functions of the Contracting
Officer under this clause on behalf of all agencies with contracts
covered by the commercial plan.
* * * * *
(End of clause)
PART 53--FORMS
53.219 [Amended]
15. Section 53.219 is amended in paragraphs (a) and (b) by removing
``(REV. 10/96)'' and inserting ``(Rev. 8/98)'', and by revising the
citation ``19.704(a)(5)'' to read ``19.704(a)(10)''
16. Section 53.301-294 is revised to read as follows:
53.301-294 Standard Form 294, Subcontracting Report for Individual
Contracts.
BILLING CODE 6820-EP-P
[[Page 34069]]
[GRAPHIC] [TIFF OMITTED] TR22JN98.011
[[Page 34070]]
[GRAPHIC] [TIFF OMITTED] TR22JN98.012
17. Section 53.301-295 is revised to read as follows:
[[Page 34071]]
53.301-295 Standard Form 295, Subcontract Report.
[GRAPHIC] [TIFF OMITTED] TR22JN98.013
[[Page 34072]]
[GRAPHIC] [TIFF OMITTED] TR22JN98.014
[FR Doc. 98-16114 Filed 6-19-98; 8:45 am]
BILLING CODE 6820-EP-C
