[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]
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