[Federal Register Volume 64, Number 87 (Thursday, May 6, 1999)]
[Proposed Rules]
[Pages 24472-24473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-11324]
[[Page 24471]]
_______________________________________________________________________
Part IV
Department of Defense
General Services Administration
National Aeronautics and Space Administration
_______________________________________________________________________
48 CFR Parts 16, 48, and 52
Federal Acquisition Regulation; Review of Award Fee Determinations
(Burnside-Ott); Proposed Rule
Federal Register / Vol. 64, No. 87 / Thursday, May 6, 1999 / Proposed
Rules
[[Page 24472]]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 16, 48, and 52
[FAR Case 98-017]
RIN 9000-AI35
Federal Acquisition Regulation; Review of Award Fee
Determinations (Burnside-Ott)
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 to amend the Federal
Acquisition Regulation (FAR). The amendment implements rulings of the
United States Court of Appeals and the United States Court of Federal
Claims. The rulings are that the Contract Disputes Act applies to all
disputes arising under Government contracts unless a more specific
statute provides for other remedies arising from a contract dispute.
DATES: Comments should be submitted on or before July 6, 1999 to be
considered in the formulation of a final rule.
ADDRESSES: Interested parties should submit written comments to:
General Services Administration FAR Secretariat (MVR), Attn: Laurie
Duarte 1800 F Street, NW, Room 4035, Washington, DC 20405. E-mail
comments submitted over Internet should be addressed to: 017@gsa.gov. Please cite FAR case 98-017 in all correspondence related
to this case.
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 Mr. Ralph DeStefano, Procurement Analyst, at (202)
501-1758. Please cite FAR case 98-017.
SUPPLEMENTARY INFORMATION:
A. Background
This proposed rule amends the FAR to implement the rulings of the
United States Court of Appeals in Burnside-Ott Aviation Training Center
v. Dalton, Secretary of the Navy, 107 F.3d 854 (Fed. Cir. 1997) and of
the United States Court of Federal Claims in Rig Masters, Inc. v. The
United States, 1998 WL 835097 (Fed. Cl.). The rulings are that the
Contract Disputes Act applies to all disputes arising under Government
contracts unless a more specific statute provides for remedies arising
from a contract dispute. FAR 16.405-2(a) is amended by deleting the
statement that award-fee determinations are not subject to the disputes
clause of the contract and inserting a statement that the determination
and the methodology for determining the award fee are unilateral
decisions made solely at the discretion of the Government. FAR 16.406
is amended to conform with the newly revised 16.405-2(a). FAR part 48
is amended to remove references to the Contract Disputes Act and state
that certain unilateral decisions are made solely at the discretion of
the Government. The clauses at 52.248-1 and 52.248-3 are amended to
conform with the newly revised part 48. The clauses at 52.219-10,
52.219-26 and 52.226-1 are amended to remove exemptions to the Contract
Disputes Act.
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.
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 the rule
implements court rulings relating to a statute that has been in effect
since 1979. The proposed rule retains the government's unilateral
decision authority in these matters. Therefore, we do not believe that
the proposed rule will have an impact on small entities. Comments are
invited from small businesses and other interested parties. Comments
from small entities concerning the affected FAR subparts also will be
considered in accordance with 5 U.S.C. 601, et seq. (FAR Case 98-017),
in correspondence
C. Paperwork Reduction Act
The Paperwork Reduction Act 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, 48, and 52
Government procurement.
Dated: April 30, 1999.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, it is proposed that 48 CFR parts 16, 48, and 52 be
amended as set forth below:
1. The authority citation for 48 CFR parts 16, 48, and 52 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 16--TYPES OF CONTRACTS
2. Section 16.405-2 is amended by revising the last sentence of
paragraph (a) to read as follows:
16.405-2 Cost-plus-award-fee contracts.
(a) * * * This determination and the methodology for determining
the award fee are unilateral decisions made solely at the discretion of
the Government.
* * * * *
3. Section 16.406 is amended by revising paragraph (e)(3) to read
as follows:
16.406 Contract clauses.
* * * * *
(e) * * *
(3) Expressly provides that the award amount and the award-fee
determination methodology are unilateral decisions made solely at the
discretion of the Government.
PART 48--VALUE ENGINEERING
4. Section 48.103 is amended by revising the introductory text of
paragraph (c) to read as follows:
48.103 Processing value engineering change proposals.
* * * * *
(c) The following Government decisions are unilateral decisions
made solely at the discretion of the Government:
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTACT CLAUSES
5. Section 52.219-10 is amended by revising the date of the clause
and the last sentence of paragraph (b) to read as follows:
52.219-10 Incentive Subcontracting Program.
* * * * *
Incentive Subcontracting Program (Date)
* * * * *
(b) * * * Determinations under this paragraph are unilateral
decisions made solely at the discretion of the Government.
* * * * *
6. Section 52.219-26 is amended by revising the date of the clause
and the
[[Page 24473]]
last sentence of paragraph (b) to read as follows:
52.219-26 Small Disadvantaged Business Participation Program--
Incentive Subcontracting.
* * * * *
Small Disadvantaged Business Participation Program--Incentive
Subcontracting (Date)
* * * * *
(b) * * * Determinations under this paragraph are unilateral
decisions made solely at the discretion of the Government.
* * * * *
7. Section 52.226-1 is amended by revising the date of the clause
and removing the last sentence in paragraph (d).
52.226-1 Utilization of Indian Organizations and Indian-Owned Economic
Enterprises.
* * * * *
Utilization of Indian Organizations and Indian-Owned Economic
Enterprises (Date)
* * * * *
8. Section 52.248-1 is amended by revising the date of the clause;
by revising the last sentences in paragraphs (e)(3) and (j), by
revising the date of Alternate II and inserting a sentence at the end
of paragraph (a) to read as follows:
52.248-1 Value Engineering.
* * * * *
Value Engineering (Date)
* * * * *
(e) * * *
(3) * * * The decision to accept or reject all or part of any
VECP is a unilateral decision made solely at the discretion of the
Contracting Officer.
* * * * *
(j) * * * The Contracting Officer shall be the sole determiner
of the amount of collateral savings.
* * * * *
Alternate II (Date) * * *
(a) * * * The decision on which rate applies is a unilateral
decision made solely at the discretion of the Government.
* * * * *
9. Section 52.248-3 is amended by revising the date of the clause
and the last sentences in paragraphs (e)(3) and (g) to read as follows:
52.248-3 Value Engineering--Construction.
* * * * *
Value Engineering--Construction (Date)
* * * * *
(e) * * *
(3) * * * The decision to accept or reject all or part of any
VECP is a unilateral decision made solely at the discretion of the
Contracting Officer.
* * * * *
(g) * * * The Contracting Officer shall be the sole determiner
of the amount of collateral savings.
* * * * *
[FR Doc. 99-11324 Filed 5-5-99; 8:45 am]
BILLING CODE 6820-EP-P
