[Federal Register Volume 59, Number 66 (Wednesday, April 6, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8143]


[[Page Unknown]]

[Federal Register: April 6, 1994]



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48 CFR Parts 15 and 52

[FAR Case 92-10]

 

Federal Acquisition Regulation; Nonprofit Institutions Clause 
Prescription

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 revise the 
prescriptions for use of the clauses Termination of Defined Benefit 
Pension Plans, and Reversion or Adjustment of Plans for Postretirement 
Benefits Other Than Pensions, and to clarify the language in the 
clauses. This regulatory action was not subject to Office of Management 
and Budget review pursuant to Executive Order No. 12866 dated September 
30, 1993.

DATES: Comments should be submitted on or before June 6, 1994 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 & F 
Streets, NW., room 4037, Washington, DC 20405.
    Please cite FAR case 92-10 in all correspondence related to this 
case.

FOR FURTHER INFORMATION CONTACT:
Jeremy F. 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 92-
10.

SUPPLEMENTARY INFORMATION:

A. Background

    The wording of the prescriptions at 15.804-8 (e) and (f) currently 
implies that the clauses at 52.215-27, Termination of Defined Benefit 
Pension Plans, and 52.215-39, Reversion or Adjustment of Plans for 
Postretirement Benefits Other Than Pensions, should also be used in 
solicitations and contracts with noncommercial organizations. The 
clauses refer to the cost principles applicable to commercial 
organizations in FAR subpart 31.2, whereas OMB Circulars A-21, A-87, 
and A-122 contain the cost principles governing contracts with 
noncommercial organizations. In addition, the prescriptions currently 
contain dissimilar criteria concerning the use of the clauses in 
preaward or postaward cost situations. The proposed revisions to the 
prescriptions at 15.804-8 (e) and (f) will correct these 
inconsistencies and clarify when the clauses at 52.215-27 and 52.215-39 
should be used. Additional revisions to the clauses clarify the 
requirements specified in them.

B. Regulatory Flexibility Act

    The 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 businesses are awarded on a competitive, 
fixed-price basis and the cost principles do not apply. An analysis of 
data available for fiscal years 1989 through 1991 reveals that, in the 
Department of Defense, the number of contract actions awarded to small 
businesses which required the submission of cost or pricing data 
averaged less than 1 percent of the total number of small business 
actions during the three-year period. In addition, for other than small 
business entities, any impact on such entities is considered to flow 
from the respective cost principles contained in the governing OMB 
Circular (i.e., A-21, Cost Principles for Educational Institutions; A-
87, Cost Principles for State and Local Governments; and A-122, Cost 
Principles for Nonprofit Organizations). 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 section 610 of the Act. Such comments must be 
submitted separately and should cite 5 U.S.C. 601, et seq. (FAR case 
92-10), 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 Parts 15 and 52

    Government procurement.

    Dated: March 30, 1994.
Albert A. Vicchiolla,
Director, Office of Federal Acquisition Policy.
    Therefore, it is proposed that 48 CFR parts 15 and 52 be amended as 
set forth below:
    1. The authority citation for 48 CFR parts 15 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 15--CONTRACTING BY NEGOTIATION

    2. Section 15.804-8 is amended by revising paragraphs (e) and (f) 
to read as follows:


15.804-8   Contract clauses.

* * * * *
    (e) Termination of Defined Benefit Pension Plans. The contracting 
officer shall insert the clause at 52.215-27, Termination of Defined 
Benefit Pension Plans, in solicitations and contracts for which it is 
anticipated that certified cost or pricing data will be required or for 
which any preaward or postaward cost determinations will be subject to 
(FAR) 48 CFR part 31.
    (f) Postretirement Benefit Funds. The contracting officer shall 
insert the clause at 52.215-39, Reversion or Adjustment of Plans for 
Postretirement Benefits Other Than Pensions (PRB), in solicitations and 
contracts for which it is anticipated that certified cost or pricing 
data will be required or for which any preaward or postaward cost 
determinations will be subject to (FAR) 48 CFR part 31.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    3. Section 52.215-27 is revised to read as follows:


52.215-27   Termination of Defined Benefit Pension Plans.

    As prescribed in 15.804-8(e), insert the following clause:

Termination of Defined Benefit Pension Plans (Date)

    The Contractor shall promptly notify the Contracting Officer in 
writing when it determines that it will terminate a defined benefit 
pension plan or otherwise recapture such pension fund assets. If 
pension fund assets revert to the Contractor or are constructively 
received by it under a termination or otherwise, the Contractor 
shall make a refund or give a credit to the Government for its 
equitable share of the gross amount withdrawn. The Government's 
equitable share shall reflect the Government's participation in 
pension costs through those contracts for which certified (see 
section 15.804 of the Federal Acquisition Regulation (FAR)) cost or 
pricing data were submitted or which are subject to FAR part 31. The 
Contractor shall include the substance of this clause in all 
subcontracts under this contract which meet the applicability 
requirements of FAR 15.804-8(e).

(End of clause)

    4. Section 52.215-39 is revised to read as follows:


52.215-39   Reversion or Adjustment of Plans for Postretirement 
Benefits Other Than Pensions (PRB).

    As prescribed in 15.804-8(f), insert the following clause:

Reversion or Adjustment of Plans for Postretirement Benefits Other Than 
Pensions (PRB) (Date)

    The Contractor shall promptly notify the Contracting Officer in 
writing when it determines that it will terminate or reduce a PRB 
plan. If PRB fund assets revert, or inure, to the Contractor or are 
constructively received by it under a plan termination, reduction, 
or otherwise, the Contractor shall made a refund or give a credit to 
the Government for its equitable share of any amount of previously 
funded PRB costs which revert or inure to the Contractor. Such 
equitable share shall reflect the Government's previous 
participation in PRB costs through those contracts for which 
certified (see section 15.804 of the Federal Acquisition Regulation 
(FAR)) cost or pricing data were submitted or which are subject to 
FAR part 31. The Contractor shall include the substance of this 
clause in all subcontracts under this contract which meet the 
applicability requirements of FAR 15.804-8(f).

(End of clause)

[FR Doc. 94-8143 Filed 4-5-94; 8:45 am]
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