[Federal Register Volume 59, Number 41 (Wednesday, March 2, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-4616]
[[Page Unknown]]
[Federal Register: March 2, 1994]
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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1815, 1837 and 1852
NASA FAR Supplement Coverage on Uncompensated Overtime
AGENCY: Office of Procurement, Procurement Policy Division, National
Aeronautics and Space Administration (NASA).
ACTION: Notice of proposed rulemaking.
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SUMMARY: This rule proposes to amend the NASA Federal Acquisition
Regulation (NFS) to include coverage on evaluation of uncompensated
overtime. NASA's policy is to consider uncompensated overtime in the
evaluation of proposals and professional compensation. Contracting
officers are required to conduct a risk assessment of proposals for
technical and professional services that include low labor rates and/or
a high level of uncompensated overtime. A solicitation provision is
prescribed for use in solicitations for professional and technical
services estimated at $500,000 or more. Use of the provision is
optional between $100,000 and $500,000. The provision requires offerors
to identify uncompensated overtime hours and the effective hourly rate
for all Fair Labor Standards Act-exempt personnel included in their
proposals and subcontractor proposals.
DATES: Comments must be received on or before May 2, 1994.
ADDRESSES: Submit comments to Ms. Anne Guenther, NASA, Code HC,
Washington, DC 20546. Comments should also be submitted to the Office
of Information and Regulatory Affairs of OMB, Attention: Desk Officer
for NASA, Washington, DC 20503.
FOR FURTHER INFORMATION CONTACT: Ms. Anne Guenther, (202) 358-0003.
SUPPLEMENTARY INFORMATION:
Background
The proposed coverage was generated in response to industry and
internal NASA requests for a uniform uncompensated overtime policy
within the Agency.
Impact
NASA certifies that this proposed 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.). It
requires offerors to identify uncompensated overtime hours in their
proposals, including their uncompensated overtime policy and the
historical basis for those hours. This information is in many cases
already being provided by offerors for proposal evaluation and is not
required for lower dollar value procurements. NASA will request OMB
approval of any reporting or recordkeeping requirements subject to the
Paperwork Reduction Act.
List of Subjects in 48 CFR Parts 1815, 1837 and 1852
Government procurement.
Thomas S. Luedtke,
Deputy Associate Administrator for Procurement.
Accordingly, 48 CFR parts 1815, 1837 and 1852 are proposed to be
amended as follows:
1. The authority citation for 48 CFR parts 1815, 1837 and 1852
continues to read as follows:
Authority: 42 U.S.C. 2473(c)(1).
PART 1815--CONTRACTING BY NEGOTIATION
1815.608-72 [Added]
2. Section 1815.608-72 is added to read as follows:
1815.608-72 Uncompensated overtime.
The contracting officer shall conduct a risk assessment of any
proposal received for technical and professional services that includes
low labor rates or uses a high level of uncompensated overtime (as
defined in 1852.237-71) in key technical positions. Such practices on
the part of the contractor may jeopardize its ability to successfully
perform contract requirements due, for example, to its inability to
hire or retain qualified personnel. Such a risk assessment shall be
performed as part of the technical evaluation and considered in
proposal evaluation (See (FAR) 48 CFR 22.11 and 1837.102(b)).
PART 1837--SERVICE CONTRACTING
3. Part 1837 is amended as set forth below:
1837.102 [Added]
a. Section 1837.102 is added to read as follows:
1837.102 Policy.
(a) To the maximum extent practicable, it is the policy of NASA to
acquire services on the basis of the task to be performed rather than
on a labor-hour basis.
(b) The use of uncompensated overtime (as defined in 1852.237-71)
is neither encouraged nor discouraged. When the proposed uncompensated
overtime is consistent with an offeror's written policies and
practices, NASA will consider it in proposal evaluation and the
evaluation of professional compensation (see (FAR) 48 CFR 22.11).
1837.110 [Amended]
b. Section 1837.110 is revised to read as follows:
1837.110 Solicitation provisions and contract clauses.
(a) The contracting officer shall obtain the Associate
Administrator for Procurement's (Code HC) approval before using in a
solicitation, contract, or negotiated contract modification for
additional work any installation-developed clause involving pension
portability.
(b) When professional and technical services are acquired on the
basis of the number of hours to be provided, rather than on the task to
be performed, and the resulting contract is expected to exceed
$500,000, the contracting officer shall insert the provision at
1852.237-72, Identification of Uncompensated Overtime, in the
solicitation. Use of this provision is optional between $100,000 and
$500,000. This provision requires offerors to identify uncompensated
overtime hours and the effective hourly rate for all Fair Labor
Standards Act-exempt personnel included in their proposals and
subcontractor proposals. This includes uncompensated overtime hours
that are in indirect cost pools for personnel whose regular hours are
normally charged direct (see 1815.608-72).
PART 1852--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
4. Section 1852.237-72 is added to read as follows:
1852.237-71 Identification of Uncompensated Overtime.
As prescribed in 1837.110(b), insert the following provision:
Identification of Uncompensated Overtime (XXX 1993)
(a) Definitions. As used in this provision:
Uncompensated overtime means the hours worked in excess of an
average of 40 hours per week, by direct charge employees who are
exempt from the Fair Labor Standards Act (FLSA) without additional
compensation. Compensated personal absences, such as holidays,
vacations, and sick leave shall be included in the normal work week
for purposes of computing uncompensated overtime hours.
Effective hourly rate is the rate which results from multiplying
the hourly rate for a 40-hour work week by 40, and then dividing by
the proposed hours per week. For example, 45 hours proposed on a 40-
hour work week basis at $20.00 per hour would be converted to an
effective hourly rate of $17.78 per hour [($20.00 x 40) divided by
45 = $17.78.]
(b) For any hours proposed against which an effective hourly
rate is applied, the Offeror shall identify in its proposal the
hours in excess of an average of 40 hours per week, at the same
level of detail as compensated hours, and the effective hourly rate,
whether at the prime or subcontract level. This includes
uncompensated overtime hours that are in indirect cost pools for
personnel whose regular hours are normally charged direct. The
proposal shall include the rationale and methodology used to
estimate the proposed amount of uncompensated overtime.
(c) The Offeror's accounting practices used to estimate
uncompensated overtime must be consistent with its cost accounting
practices used to accumulate and report uncompensated overtime
hours.
(d) Proposals which include unrealistically low labor rates, or
which do not otherwise demonstrate cost realism, will be considered
in a technical and cost risk assessment and evaluated for award in
accordance with that assessment.
(e) The Offeror shall include with its proposal a copy of its
policy addressing uncompensated overtime, including a description of
the timekeeping and accounting systems used to record all hours
worked by FLSA-exempt employees, and the historical basis for the
uncompensated overtime hours proposed.
(End of provision)
[FR Doc. 94-4616 Filed 3-1-94; 8:45 am]
BILLING CODE 7510-01-M
