[Federal Register Volume 60, Number 207 (Thursday, October 26, 1995)]
[Proposed Rules]
[Page 54918]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26487]
[[Page 54917]]
_______________________________________________________________________
Part II
Department of Defense
General Services Administration
National Aeronautics and Space Administration
_______________________________________________________________________
48 CFR Part 31
Federal Acquisition Regulation, Legal Proceedings Costs; Proposed Rule
Federal Register / Vol. 60, No. 207 / Thursday, October 26, 1995 /
Proposed Rules
[[Page 54918]]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 31
[FAR Case 93-10]
RIN 9000-AG65
Federal Acquisition Regulation; Legal Proceedings Costs
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council are proposing changes to amend the
Federal Acquisition Regulation (FAR) concerning costs related to legal
and other proceedings to make the costs of pre- or post-award protests
(except for costs incurred by an intervenor on the side of the
Government) an unallowable cost. This regulatory action was not subject
to Office of Management and Budget review under Executive Order 12866,
dated September 30, 1993.
DATES: Comments should be submitted on or before December 26, 1995 to
be considered in the formulation of a final rule.
ADDRESSES: Interested parties should submit written comments to:
General Services Administration, FAR Secretariat (VRS), 18th and F
Streets, NW, Room 4037, Washington, DC 20405.
Please cite FAR case 93-10 in all correspondence related to this
case.
FOR FURTHER INFORMATION CONTACT: Mr. Jeremy Olson at (202) 501-3221 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAR case 93-10.
SUPPLEMENTARY INFORMATION:
A. Background
This proposed rule would add another category of unallowable costs
to the list at 31.205-47(f) (except for costs incurred by an intervenor
on the side of the Government) which should disallow most cost of pre-
or post-award protests. This change is being proposed after the Defense
Contract Audit Agency raised a concern that rulings by the Armed
Services Board of Contract Appeals (ASBCA) would encourage contractors
to protest Government awards (the appeal of Bos'n Towing and Salvage
Company (ASBCA 1992) No. 41357, 92-2 BCA Paragraph 24,864 and the
appeal of J.W. Cook & Sons, Inc., (ASBCA 1992) No. 39691, 92-3 BCA
Paragraph 25,053). The ASBCA had ruled that FAR 31.205-47(f)(1) only
applied to claims under the Contract Disputes Act and not to protests
under the Competition in Contracting Act and that, therefore, protest
costs were allowable as either a direct or indirect cost on Government
contracts.
B. Regulatory Flexibility Act
This proposed rule is not expected to 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 most
contracts awarded to small entities are awarded on a competitive,
fixed-price basis and the cost principles do not apply. The cost
principles apply only to contracts for which cost or pricing data has
been submitted. An Initial Regulatory Flexibility Analysis has,
therefore, not been performed. Comments from small entities concerning
the affected FAR subpart will be considered in accordance with 5 U.S.C.
610 of the Act. Such comments must be submitted separately and should
cite 5 U.S.C. 601 et seq. (FAR case 93-10), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
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 Part 31
Government procurement.
Dated: October 18, 1995.
Edward C. Loeb,
Acting Director, Officer of Federal Acquisition Policy.
Therefore, it is proposed that 48 CFR Part 31 be amended as set
forth below:
PART 31--CONTRACT COST PRINCIPLES AND PROCEDURES
1. The authority citation for 48 CFR Part 31 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).
2. Section 31.205-47 is amended by adding paragraph (f)(8) to read
as follows:
31.205-47 Costs related to legal and other proceedings.
* * * * *
(f) * * *
(8) Protests of Federal Government solicitations or contract
awards, unless the costs are incurred by interested parties to defend
against such protests.
* * * * *
[FR Doc. 95-26487 Filed 10-25-95; 8:45 am]
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