2011-9515. Federal Acquisition Regulation; Service Contracts Reporting Requirements

AGENCY:

Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).

ACTION:

Proposed rule.

SUMMARY:

DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement section 743 of Division C of the Consolidated Appropriations Act, 2010. This proposed rule amends the FAR to require service contractors for executive agencies, except the Department of Defense (DoD), covered by the Federal Activities Inventory Reform (FAIR) Act of 1998, to submit information annually in support of agency-level inventories for service contracts.

DATES:

Interested parties should submit written comments to the Regulatory Secretariat at one of the addresses shown below on or before June 20, 2011 to be considered in the formation of a final rule.

ADDRESSES:

Submit comments in response to FAR Case 2010-010, by any of the following methods:

• Regulations.gov: http://www.regulations.gov.

Submit comments via the Federal eRulemaking portal by inputting “FAR Case 2010-010” under the heading “Enter Keyword or ID and selecting “Search”. Select the link “Submit a Comment” that corresponds with FAR Case 2010-010 at the “Submit a Comment” screen. Please include your name, company name (if any), and “FAR Case 2010-010” on your attached document.

• Fax: [phone].
• Mail: General Services Administration, FAR Secretariat (MVCB), ATTN: Hada Flowers, 1275 First Street, NE., Washington, DC 20405.

Instructions: Please submit comments only and cite FAR Case 2010-010, in all correspondence related to this case. All comments received will be posted without change to http://www.regulations.gov,, including any personal and/or business confidential information provided.

FOR FURTHER INFORMATION CONTACT:

Ms. Clare McFadden, Procurement Analyst, at [phone] for clarification of content. Please cite FAR Case 2010-010. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at [phone].

SUPPLEMENTARY INFORMATION:

I. Background

Section 743 of Division C of the Consolidated Appropriations Act, 2010 (Pub. L. 111-117) requires executive agencies covered by the Federal Activities Inventory Reform (FAIR) Act (Pub. L. 105-270), except DoD, to submit to the Office of Management and Budget (OMB) annually an inventory of activities performed by service contractors. DoD is exempt from this reporting requirement because 10 U.S.C. 2462 and 10 U.S.C. 2330a(c) already requires DoD to develop an annual service contract inventory.

House Report 111-366 notes, in connection with section 743, that, “(i)n the absence of complete and reliable information on the extent of their reliance on service contractors, Federal agencies are not well-equipped to determine whether they have the right balance of contractor and in-house resources needed to accomplish their missions. This section requires agencies to review the contents of the inventory and report on actions taken.”f

Section 743 mandates that, for each service contract, the agency-level inventory report must include the following information—

(1) A description of the services purchased by the executive agency and the role the services played in achieving objectives, regardless of whether such a purchase was made through a contract or task order;

(2) The organizational component of the executive agency administering the contract, and the organizational component of the agency whose requirements are being met through contractor performance of the service;

(3) The total dollar amount obligated for services under the contract and the funding source for the contract;

(4) The total dollar amount invoiced for services under the contract;

(5) The contract type and date of award;

(6) The name of the contractor and place of performance;

(7) The number and work location of contractor and subcontractor employees, expressed as full-time equivalents for direct labor, compensated under the contract;

(8) Whether the contract is a personal services contract; and

(9) Whether the contract was awarded on a noncompetitive basis, regardless of date of award.

Additionally, the Office of Federal Procurement Policy's November 5, 2010, guidance, entitled Service Contract Inventories (http://www.whitehouse.gov/​omb/​procurement_​index_​memo), requires agencies to include contract actions funded by that agency, including contract actions made on behalf of the agency by other agencies. Similarly, agencies should exclude contract actions that they have made on another agency's behalf with the other agency's funding. This guidance provided a framework to help agencies prepare service contract inventories for Fiscal Year (FY) 2010. To maximize the management benefits associated with a service contract inventory and ensure consistency across agencies, FY 2010 inventories followed the format provided in the guidance and included only the data elements identified in section 743(a)(3) that are currently reported in the Federal Procurement Data System—Next Generation (FPDS-NG). However, certain data elements, namely the total amount invoiced for services and number of direct labor hours expended on services performed during the previous Government fiscal year, which will be used to calculate the number of contractor manpower full-time equivalents, must be collected from service contractors.

The service contractor inventory requirements in section 743 create significant management responsibilities to support the appropriate rebalancing of work performed by Federal employees and contractors. To implement this requirement in the FAR, OMB directed DoD, GSA, and NASA to use a phased-in approach similar to that proposed in the President's Budget for FY 2011. A phased-in approach will help agencies more effectively manage the challenges associated with launching and maintaining an inventory.

In accordance with Section 743, this rule proposes to amend the FAR to create a new FAR subpart 4.16, entitled Service Contracts Inventory, to address responsibilities for collection, management, and reporting of this information, and a new clause, 52.204-XX, Service Contract Reporting Requirements, to incorporate into covered solicitations and contracts. An Alternate clause will be used for orders placed on indefinite-delivery contracts.

Agencies placing orders on these existing contracts after the effective date of a resulting final rule will be required to report this information if the order meets the thresholds established in FAR 4.1603 (e.g., at or above the simplified acquisition threshold (SAT) for cost-reimbursement, time-and-materials, and labor-hour contracts, and fixed-price contracts at or above $5 million in FY 2011 and phased-in thresholds thereafter).

Under this proposed rule, contractors must submit the following four data elements for each covered contract or order for a given year by October 31st annually:

(1) Contract number and, as applicable, task order number.

(2) The total dollar amount invoiced for services performed during the previous fiscal year under the contract.

(3) The number of contractor direct labor hours expended on the services performed during the previous fiscal year.

(4) Data reported by subcontractors.

Subcontractor information is also required under Section 743. To implement this requirement in the FAR, in a manner that is least burdensome, OMB directed collection of this information from first-tier subcontractors (similar to the subcontractor reporting requirement in FAR subpart 4.14, Reporting Executive Compensation and First-Tier Subcontract Awards). Prime contractors would be required to obtain from each first-tier subcontractor performing under a covered contract the following information by October 15th annually:

(1) Subcontract number (including subcontractor name, and, if available, Data Universal Numbering System (DUNS) number associated with the subcontract number).

(2) Number of first-tier subcontractor direct-labor hours expended on services performed during the previous Government fiscal year.

The proposed reporting requirement applies only to solicitations, contracts, and orders for services, to first-tier subcontracts at or above the established thresholds.

II. Executive Orders 13563 and 12866

Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was 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.

III. Regulatory Flexibility Act

The change 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 this new requirement does impose some additional requirements on small businesses that provide services to Executive agencies, other than DoD.

An Initial Regulatory Flexibility Analysis (IRFA) has been prepared. The analysis is summarized as follows:

The statute requires agencies covered by the FAIR Act, except DoD, to submit annual agency inventories of their service contracts. The inventory must address nine data items for each service contract (see “I. Background”). DoD, GSA, and NASA attempted to minimize the information-collection requirement for contractors by requiring agencies to obtain as much of the data as possible from existing sources such as the Federal Procurement Data System (FPDS). For each service contract or order, contractors would be expected to report annually—

(1) Contract number and, as applicable, task order number;

(2) The total dollar amount invoiced for services performed during the previous Government fiscal year under the contract;

(3) The number of contractor direct labor hours expended on the services performed during the previous Government fiscal year; and

(4) Data reported by first-tier subcontractors.

Consistent with the thresholds for prime contracts, first-tier subcontractors with subcontracts valued at or above the thresholds established for new contracts (e.g., $5 million for new fixed-price contracts in FY 2011 and at or above the simplified acquisition threshold for cost-reimbursement, time-and-materials, and labor-hour contracts) would be expected to report the following data elements to the prime contractor by October 15th annually:

(1) Subcontract number (including the subcontractor name and if available, the DUNS number).

(2) Number of first-tier subcontractor direct labor hours expended on services performed during the previous Government fiscal year.

To further minimize the impact, OMB elected to implement the contractor reporting requirements over a period of four years beginning with larger dollar obligations for new fixed-price contracts (i.e., $5 million for FY 2011) that goes down to a $500,000 contract reporting threshold for FY 2014. A lower threshold was selected for cost-reimbursement, time-and-materials, and labor-hour contracts (i.e., at or above the SAT) because contractors already track the required information to invoice the Government.

The reporting requirement would apply to Government contractors, other than DoD contractors, that supply services to executive agencies during a Government fiscal year (beginning in FY 2011) and over the specified reporting thresholds.

Each contractor would be required to report annually on the services provided during the previous Government fiscal year. The information would be input to a new Service Contract Reporting Portal (currently under development). This information will be collected through this portal, and no hard-copy reporting is required. When providing a proper invoice to the Government for cost-reimbursement, time-and-materials, and labor-hour contracts, the information on the number of direct labor hours worked is already compiled by contractors, so the information collected should be minimal for these types of contracts. The direct costs to small business firms to comply with this rule are primarily for data collection and input associated with the single annual report.

To minimize the burden on small businesses, the following alternatives were considered and included in the proposed FAR rule:

• Minimizing the inventory data elements collected by using existing systems, such as FPDS.
• Minimizing the reporting to once a year.
• Enabling electronic reporting by the contractor into the new portal.
• Requiring contractors to provide only the number of direct labor hours and developing the system to automatically generate the number of full-time equivalents.
• Limiting the reporting requirement to first-tier subcontractors for services in lieu of all subcontractors.
• Establishing a phased-in approach based on contract type and estimated total dollar amount, from 2011 to 2014 based on thresholds, to minimize the collection of information.

The Regulatory Secretariat will be submitting a copy of the Initial Regulatory Flexibility Analysis (IRFA) to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat. The Councils invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

DoD, GSA, and NASA will also consider comments from small entities concerning the affected regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Comments must be submitted separately and should cite 5 U.S.C. 601, et seq. (FAR Case 2010-010) in all correspondence.

IV. Paperwork Reduction Act

The Paperwork Reduction Act (44 U.S.C. Chapter 35) applies because the proposed rule contains information collection requirements. Accordingly, the Regulatory Secretariat has submitted a request for approval of a new information collection requirement: 9000-0179, Service Contractor Reporting Requirements, FAR Case 2010-010, Proposed Rule, to the Office of Management and Budget.

Annual Reporting Burden:

Public reporting burden for this collection of information is estimated to average 2 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Because this is a new information collection requirement, historical data is not available. Further, the ceiling amount for certain service contracts to include the reporting requirement will be phased in over several years. Data from FY 2009 was used to determine the burden, with the most recent year for which data is available used as a baseline for the number of affected service contracts. DOD awards were excluded.

If this reporting requirement had been in place during FY 2009, it would have covered 17,120 fixed-price service contracts over $5 million and 6,725 cost-reimbursement, time-and-materials, and labor-hour service contracts above the simplified acquisition threshold. Therefore, the total number of contracts on which reports would have been submitted is 23,845. Only one report is required for each contract annually, and we estimate that it will take approximately 2 hours to prepare and submit the report. The annual reporting burden is estimated as follows:

Respondents	23,845
Responses/respondent	× 1
Total annual Responses	23,845
Preparation hours per response	× 2
Total response burden hours	47,690

List of Subjects in 48 CFR Parts 4, 8, 17, 37, and 52

• Government procurement

Dated: April 14, 2011.

Millisa Gary,

Acting Director, Office of Governmentwide Acquisition Policy.

Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 4, 8, 17, 37, and 52 as set forth below:

1. The authority citation for 48 CFR parts 4, 8, 17, 37, 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 4—ADMINISTRATIVE MATTERS

2. Add subpart 4.16 to read as follows:

Subpart 4.16—Service Contracts Inventory

4.1600

Scope of subpart.

4.1601

Definitions.

4.1602

Applicability.

4.1603

Contractor reporting requirements.

4.1604

Contracting officer responsibilities.

4.1605

Contract clause.

Subpart 4.16—Service Contracts Inventory

4.1600

Scope of subpart.

This subpart implements section 743 of Division C of the Consolidated Appropriations Act, 2010, (Pub. L. 111-117), which requires agencies to report annually to the Office of Management and Budget (OMB) on activities performed by service contractors. Section 743 applies to executive agencies, other than the Department of Defense (DoD), covered by the Federal Activities Inventory Reform Act (Pub. L. 105-270) (FAIR Act). The information reported in the inventory will be publicly accessible.

4.1601

Definitions.

FAIR Act agencies, as used in this subpart, means the agencies required under the FAIR Act to submit inventories annually of the activities performed by Government personnel.

First-tier subcontract means a subcontract awarded directly by a contractor to furnish supplies or services (including construction) for performance of a prime contract, but excludes supplier agreements with vendors, such as long-term arrangements for materials or supplies that would normally be applied to a contractor's general and administrative expenses or indirect cost.

Service contract is defined in 37.101.

4.1602

Applicability.

(a) This subpart applies to—

(1) All FAIR Act agencies, except DoD;

(2) Solicitations, contracts, and orders for services that meet or exceed the thresholds at 4.1603; and

(3) Contractors and first-tier subcontractors.

(b) Procedures for compiling and submitting agency service contract inventories are governed by section 743(a)(3) of Division C of Pub. L. 111-117 and Office of Federal Procurement Policy (OFPP) guidance. The guidance is available at the following Web site: http://www.whitehouse.gov/​omb/​procurement-service-contract-inventories.

(c) This subpart addresses requirements for obtaining information from, and reporting by, agency service contractors.

4.1603

Contractor reporting requirements.

(a) Thresholds. (1) Except as exempted by OFPP guidance, service contractor reporting shall be required for contracts and first-tier subcontracts based on type of contract and estimated total value. For indefinite-delivery contracts, reporting shall be determined based on the type and estimated total value of the orders issued under the contract. Indefinite-delivery contracts include, but are not limited to, contracts such as indefinite-delivery indefinite-quantity (IDIQ) contracts, Federal Supply Schedule contracts (FSSs), Governmentwide acquisition contracts (GWACs), and multi-agency contracts.

(2) Reporting is required for contracts and orders according to the following thresholds:

(i) All cost-reimbursement, time-and-materials, and labor-hour service contracts and orders with an estimated total value above the simplified acquisition threshold.

(ii) All fixed-price contracts awarded or orders issued according to the following thresholds:

(A) Awarded or issued in Fiscal Year (FY) 2011, on or after [DATE] with an estimated total value of $5 million or greater.

(B) Awarded or issued in FY 2012, with an estimated total value of $2.5 million or greater.

(C) Awarded or issued in FY 2013, with an estimated total value of $1 million or greater.

(D) Awarded or issued in FY 2014 and subsequent years, with an estimated total value of $500,000 or greater.

(3) For all first-tier subcontractors performing work under a covered contract, subcontract reporting is required based on the thresholds as prescribed in paragraphs (a)(2)(i) and (ii) of this section.

(b) Agency reporting responsibilities. (1) Agencies shall ensure that contractors comply with the reporting requirements of 52.204-XX, Service Contract Reporting Requirements.

(2) Agencies are required to compile annually an inventory of service contracts performed for, or on behalf of, the agency during the prior fiscal year in order to determine the extent of the agency's reliance on service contractors. Agencies shall submit a service contract inventory to OMB by December 30 annually. Then, each agency must post the inventory on its Web site and publish a Federal Register Notice of Availability by January 30 annually.

(3) Most of the required information is already collected in the Federal Procurement Data System (FPDS). Information not collected in FPDS will be provided by the contractor, as specified in 52.204-XX, Service Contract Reporting Requirements. Contracts reported using the generic DUNS number allowed at 4.605(b)(2) will interfere with the contractor's ability to comply with this reporting requirement, because the data will not pre-populate from FPDS.

4.1604

Contracting officer responsibilities.

(a) The contracting officer shall ensure that the contract reporting clause is included in solicitations, contracts, and orders as prescribed in 4.1605 and that the contractor complies with the reporting requirements in 52.204-XX, Service Contract Reporting Requirements. For indefinite-delivery contracts, the contracting officer who awarded the contract shall ensure that 52.204-XX, Service Contract Reporting Requirements, is included in the contract. The contracting officer at the order level shall verify the clause's inclusion in the contract and ensure that each contractor awarded an order against the contract is submitting the report in a timely manner.

(b) The contracting officer shall make the contractor's failure to comply with the reporting requirements a part of the contractor's performance information under subpart 42.15.

4.1605

Contract clause.

The contracting officer shall insert the clause at 52.204-XX, Service Contract Reporting Requirements, in solicitations and contracts for services that meet or exceed the thresholds at 4.1603. The contracting officer shall use the clause with its Alternate I in indefinite-delivery contracts where one or more orders issued thereunder are expected to each meet or exceed the thresholds at 4.1603. This clause is not required in classified solicitations, contracts, or orders.

PART 8—REQUIRED SOURCES OF SUPPLIES AND SERVICES

3. Amend section 8.404 by adding paragraph (f) to read as follows:

8.404

Use of Federal Supply Schedules.

* * * * *

(f) Ensure that service contractor reporting requirements will be met in accordance with subpart 4.16, Service Contracts Inventory.

PART 17—SPECIAL CONTRACTING METHODS

4. Revise section 17.504 to read as follows:

17.504

Reporting requirements.

(a) The senior procurement executive for each executive agency shall submit to the Director of OMB an annual report on interagency acquisitions, as directed by OMB.

(b) The contracting officer shall ensure that service contractor reporting requirements will be met in accordance with subpart 4.16, Service Contracts Inventory.

PART 37—SERVICE CONTRACTING

5. Amend 37.103 by adding paragraph (e) to read as follows:

37.103

Contracting officer responsibility.

* * * * *

(e) Ensure that service contractor reporting requirements will be met in accordance with subpart 4.16, Service Contracts Inventory.

PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

6. Add section 52.204-XX to read as follows:

52.204-XX

Service Contract Reporting Requirements.

As prescribed in 4.1605, insert the following clause:

Service Contract Reporting Requirements (Date)

(a) The Contractor shall report, in accordance with paragraph (b) of this section, annually by October 31st for services performed under this contract during the preceding Government fiscal year (October 1-September 30).

(b) The Contractor shall report the following information:

(1) Contract number and, as applicable, order number.

(2) The total dollar amount invoiced for services performed during the previous Government fiscal year under the contract.

(3) The number of Contractor direct labor hours expended on the services performed during the previous Government fiscal year.

(4) Data reported by subcontractors under paragraph (d) of this clause.

(c) The information required in paragraph (b) of this section shall be submitted to the online Service Contract Reporting Portal and will be publicly available at http://www.acquisition.gov.

(d)(1) The Contractor shall require each first-tier subcontractor performing under this contract, with contracts valued at or above the thresholds set forth in 4.1603(a)(2), to provide the following detailed information to the Contractor by October 15th:

(i) Subcontractor DUNS number, or if DUNS number is unavailable, subcontractor name.

(ii) The number of first-tier subcontractor direct-labor hours expended on the services performed during the previous Government fiscal year.

(2) The Contractor shall advise the subcontractor that the information will be made available to the public as required by section 743 of Division C of the Consolidated Appropriations Act, 2010.

(End of clause)

Alternate I (DATE). As prescribed in 4.1605, substitute the following paragraphs (a), (b), and (d) for paragraphs (a), (b), and (d) of the basic clause.

(a) The Contractor shall report, in accordance with paragraph (b) of this Alternate I, by October 31st annually for services performed during the preceding Government fiscal year (October 1-September 30) under this contract for orders that exceed the thresholds established in 4.1603(a)(2).

(b) The Contractor shall report the following information:

(1) Contract number and, as applicable, order number.

(2) The total dollar amount invoiced for services performed during the previous Government fiscal year under the order.

(3) The number of Contractor direct labor hours expended on the services performed during the previous Government fiscal year.

(4) Data reported by subcontractors under paragraph (d) of this clause.

(d)(1) The Contractor shall require each first-tier subcontractor with contracts valued at or above the thresholds set forth in 4.1603(a)(2) performing services under this contract to provide the following detailed information to the Contractor by October 15th:

(i) Subcontractor DUNS number, or if DUNS number is unavailable, subcontract name.

(ii) The number of first-tier subcontractor direct-labor hours expended on the services performed during the previous Government fiscal year.

(2) The Contractor shall advise the subcontractor that the information will be made available to the public as required by section 743 of Division C of the Consolidated Appropriations Act, 2010.