[Federal Register Volume 63, Number 30 (Friday, February 13, 1998)]
[Rules and Regulations]
[Pages 7308-7311]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-3714]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

48 CFR Part 231

[DFARS Case 97-D313]


Defense Federal Acquisition Regulation Supplement; Restructuring 
Costs

AGENCY: Department of Defense (DoD).

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: The Director of Defense Procurement has issued an interim rule 
amending the Defense Federal Acquisition Regulation Supplement (DFARS) 
to implement Section 8092 of the National Defense Appropriations Act 
for Fiscal Year 1998 and Section 804 of the National Defense 
Authorization Act for Fiscal Year 1998 concerning the reimbursement of 
external restructuring costs associated with a business combination.

DATES: Effective date: February 13, 1998.
    Comment date: Comments on the interim rule should be submitted in 
writing to the address shown below on or before April 14, 1998, to be 
considered in the formulation of the final rule.

ADDRESSES: Interested parties should submit written comments to: 
Defense Acquisition Regulations Council, Attn: Ms. Sandra G. Haberlin, 
PDUSD (A&T) DP (DAR), IMD 3D139, 3062 Defense Pentagon, Washington, DC 
20301-3062. Telefax number (703) 602-0350.

[[Page 7309]]

    E-mail comments submitted over the Internet should be addressed to: 
dfarsacq.osd.mil
    Please cite DFARS Case 97-D313 in all correspondence related to 
this issue. E-mail comments should cite DFARS Case 97-D313 in the 
subject line.

FOR FURTHER INFORMATION CONTACT:
Ms. Sandra G. Haberlin, (703) 602-0131.

SUPPLEMENTARY INFORMATION: 

A. Background

    This interim rule amends DFARS 231.205-70, External restructuring 
costs, to implement Section 8092 of the National Defense Appropriations 
Act for Fiscal Year 1998 (Public Law 105-56), and Section 804 of the 
National Defense Authorization Act for Fiscal Year 1998 (Pub. L. 105-
85).
    Section 8092 of Pub. L. 105-56 restricts DoD form using fiscal year 
1998 funds to reimburse external restructuring costs associated with a 
business combination undertaken by a defense contractor unless certain 
conditions are met. These conditions include that either (1) the 
audited savings for DoD resulting from the restructuring will exceed 
the costs allowed by a factor of at least two to one; or (2) the 
savings for DoD resulting from the restructuring will exceed the costs 
allowed and the Secretary of Defense determines that the business 
combination will result in the preservation of a critical capability 
that might otherwise be lost to DoD.
    Section 804 of Pub. L. 105-85 (1) specifies that similar conditions 
be met before DoD reimburses contractors for restructuring costs; (2) 
codifies this limitation on payment of restructuring costs under 
defense contracts at 10 U.S.C. 2324; and (3) repeals Section 818(a) of 
the National Defense Authorization Act for Fiscal Year 1995 (10 U.S.C. 
2324 note). Section 818(a) required an official of DoD at the level of 
Assistant Secretary of Defense or above to certify in writing that 
projections of future cost savings resulting from the business 
combination were based on audited cost data and should result in 
overall reduced costs to DoD, prior to DoD reimbursing contractors for 
restructuring costs.

B. Regulatory Flexibility Act

    The interim 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 entities use simplified acquisition 
procedures or are awarded on a competitive fixed-price basis, and do 
not require application of the cost principle contained in this rule. 
An Initial Regulatory Flexibility Analysis has, therefore, not been 
performed. Comments are invited from small businesses and other 
interested parties. Comments from small entities concerning the 
affected DFARS subpart also will be considered in accordance with 5 
U.S.C. 610. Such comments should be submitted separately and should 
cite DFARS Case 97-D313 in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the interim rule 
does not impose any information collection requirements that require 
Office of Management and Budget approval under 44 U.S.C. 3501, et seq.

D. Determination To Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense that urgent and compelling reasons exist to promulgate this 
interim rule without prior opportunity for public comment. This rule 
implements Section 8092 of the National Defense Appropriations Act for 
Fiscal Year 1998 (Pub. L. 105-56), which was effective upon enactment 
on October 8, 1997; and Section 804 of the National Defense 
Authorizations Act for Fiscal Year 1998 (Pub. L. 105-85), which was 
effective upon enactment on November 18, 1997. These sections restrict 
the reimbursement of restructuring costs associated with a business 
combination of a defense contractor unless certain conditions are met. 
Comments received in response to the publication of this interim rule 
will be considered in formulating the final rule.

List of Subjects in 48 CFR Part 231

    Government procurement.
Michele P. Peterson,
Executive Editor, Defense Acquisition Regulations Council.

    Therefore, 48 CFR part 231 is amended as follows:
    1. The authority citation for 48 CFR part 231 continues to read as 
follows:

    Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.

PART 231--CONTRACT COST PRINCIPLES AND PROCEDURES

    2. Section 231.205-70 is revised to read as follows:


231.205-70  External restructuring costs.

    (a) Scope. This subsection prescribes policies and procedures for 
allowing contractor external restructuring costs when savings would 
result for DoD. This subsection also implements 10 U.S.C. 2325, Section 
818 of the National Defense Authorization Act for Fiscal Year 1995 
(Pub. L. 103-337) (10 U.S.C. 2324 note), Section 8115 of the National 
Defense Appropriations Act for Fiscal Year 1997 (Pub. L. 104-208), and 
Section 8092 of the National Defense Appropriations Act for Fiscal Year 
1998 (Pub. L. 105-56).
    (b) Definitions. As used in this subsection:
    (1) Business combination means a transaction whereby assets or 
operations of two or more companies not previously under common 
ownership or control are combined, whether by merger, acquisition, or 
sale/purchase of assets.
    (2) External restructuring activities means restructuring 
activities occurring after a business combination that affect the 
operations of companies not previously under common ownership or 
control. They do not include restructuring activities occurring after a 
business combination that affect the operations of only one of the 
companies not previously under common ownership or control, or, when 
there has been no business combination, restructuring activities 
undertaken within one company. External restructuring activities are a 
direct outgrowth of a business combination. They normally will be 
initiated within 3 years of the business combination.
    (3) Restructuring activities means nonroutine, nonrecurring, or 
extraordinary activities to combine facilities, operations, or 
workforce, in order to eliminate redundant capabilities, improve future 
operations, and reduce overall costs. Restructuring activities do not 
include routine or ongoing repositionings and redeployments of a 
contractor's productive facilities or workforce (e.g., normal plant 
rearrangement or employee relocation), nor do they include other 
routine or ordinary activities charged as indirect costs that would 
otherwise have been incurred (e.g., planning and analysis, contract 
administration and oversight, or recurring financial and administrative 
support).
    (4) Restructuring costs means the costs, including both direct and 
indirect, of restructuring activities. Restructuring costs that may be 
allowed include, but are not limited to, severance pay for employees, 
employee retraining costs, relocation expense for retained employees, 
and relocation and rearrangement of plant and equipment. For purposes 
of this definition, if restructuring costs associated with

[[Page 7310]]

external restructuring activities allocated to DoD contracts are less 
than $2.5 million, the costs shall not be subject to the audit, review, 
certification, and determination requirements of paragraph (c)(1) of 
this subsection; instead, the normal rules for determining cost 
allowability in accordance with FAR part 31 shall apply.
    (5) Restructuring savings means cost reductions, including both 
direct and indirect cost reductions, that result from restructuring 
activities. Reassignments of cost to future periods are not 
restructuring savings.
    (c) Limitations on cost allowability. (1) Restructuring costs 
associated with external restructuring activities shall not be allowed 
unless--
    (i) Such costs are allowable in accordance with FAR part 31 and 
DFARS part 231;
    (ii) An audit of projected restructuring costs and restructuring 
savings is performed;
    (iii) The cognizant administrative contracting officer (ACO) 
reviews the audit report and the projected costs and projected savings, 
and negotiates an advance agreement in accordance with paragraph (d)(8) 
of this subsection; and
    (iv) For business combinations that occur--
    (A) Prior to October 1, 1996, the Under Secretary of Defense 
(Acquisition & Technology) or the Principal Deputy certifies that 
projections of future restructuring savings resulting for DoD from the 
business combination are based on audited cost data and should result 
in overall reduced costs for DoD.
    (B) October 1, 1996, through November 18, 1997, the Under Secretary 
of Defense (Acquisition & Technology) or the Principal Deputy--
    (1) Certifies that projections of future restructuring savings 
resulting for DoD from the business combination are based on audited 
cost data and should result in overall reduced costs for DoD; and
    (2) Determines in writing that the audited projected savings for 
DoD resulting from the restructuring will exceed either--
    (i) The costs allowed by a factor of at least two to one; or
    (ii) The costs allowed, and the business combination will result in 
the preservation of a critical capability that might otherwise be lost 
to DoD.
    (C) After November 18, 1997, the Under Secretary of Defense 
(Acquisition & Technology) or the Principal Deputy determines in 
writing that the audited projected savings for DoD resulting from 
restructuring will exceed either--
    (1) The costs allowed by a factor of at least two to one; or
    (2) The costs allowed, and the business combination will result in 
the preservation of a critical capability that might otherwise be lost 
to DoD.
    (2) The audit, review, certification, and determination required by 
paragraph (c)(1) of this subsection shall not apply to any business 
combination for which payments for restructuring costs were made before 
August 15, 1994, or for which the cognizant ACO executed an advance 
agreement establishing cost ceilings based on audit/negotiation of 
detailed cost proposals for individual restructuring projects before 
August 15, 1994.
    (d) Procedures and ACO responsibilities. As soon as it is known 
that the contractor will incur restructuring costs for external 
restructuring activities, the cognizant ACO shall:
    (1) Promptly execute a novation agreement, if one is required, in 
accordance with FAR subpart 42.12 and DFARS subpart 242.12 and include 
the provision at DFARS 242.1204(e).
    (2) Direct the contractor to segregate restructuring costs and to 
suspend these amounts from any billings, final contract price 
settlements, and overhead settlements until the certification, or 
determination, or both, as applicable, in paragraph (c)(1)(iv) of this 
subsection is obtain.
    (3) Require the contractor to submit an overall plan of 
restructuring activities and an adequately supported proposal for 
planned restructuring projects. The proposal must include a breakout by 
year by cost element, showing the present value of projected 
restructuring costs and projected restructuring savings.
    (4) Notify major buying activities of contractor restructuring 
actions and inform them about any potential monetary impacts on major 
weapons programs, when known.
    (5) Upon receipt of the contractor's proposal, as soon as 
practicable, adjust forward pricing rates to reflect the impact of 
projected restructuring savings. If restructuring costs are included in 
forward pricing rates prior to execution of an advance agreement in 
accordance with paragraph (d)(8) of this subsection, the contracting 
officer shall include a repricing clause in each fixed-price action 
that is priced based on the rates. The repricing clause must provide 
for a downward price adjustment to remove restructuring costs if the 
certification, or determination, or both, as applicable, required by 
paragraph (c)(1)(iv) of this subsection is not obtained.
    (6) Upon receipt of the contractor's proposal, immediately request 
an audit review of the contractor's proposal.
    (7) Upon receipt of the audit report, determine if restructuring 
savings will exceed restructuring costs on a present value basis. 
However, for business combinations that occur on or after October 1, 
1996, the audited projected savings for DoD must exceed the costs 
allowed by a factor of at least two to one on a present value basis, 
unless the determination in paragraph (c)(1)(iv)(B) (2)(ii) or 
(c)(1)(iv)(C) (2) of this subsection applies.
    (8) Negotiate an advance agreement with the contractor setting 
forth, at a minimum, a cumulative cost ceiling for restructuring 
projects and, when necessary, a cost amortization schedule. The costs 
may not exceed the amount of projected restructuring savings on a 
present value basis. The advance agreement shall not be executed until 
the certification, or determination, or both, as applicable, required 
by paragraph (c)(1)(iv) of this subsection is obtained.
    (9) Submit to the Director of Defense Procurement, Office of the 
Under Secretary of Defense (Acquisition & Technology), ATTN: OUSD (A&T) 
DP/CPF, a recommendation for certification, or determination, or both, 
as applicable. Include the information described in paragraph (e) of 
this subsection.
    (10) Consult with the Director of Defense Procurement, Office of 
the Under Secretary of Defense (Acquisition & Technology), when 
paragraph (c)(1) (iv)(B) (2)(ii) or (c)(1)(iv)(C) (2) of this 
subsection applies.
    (e) Information needed to obtain certification and determination. 
(1) The novation agreement (if one is required).
    (2) The contractor's restructuring proposal.
    (3) The proposed advance agreement.
    (4) The audit report.
    (5) Any other pertinent information.
    (6) The cognizant ACO's recommendation for certification, or 
determination, or both, as applicable. This recommendation must clearly 
indicate one of the following, consistent with paragraph (c)(1)(iv) of 
this subsection:
    (i) Contractor projections of future cost savings resulting for DoD 
from the business combination are based on audited cost data and should 
result in overall reduced costs for the Department.
    (ii) The audited projected savings for DoD will exceed the costs 
allowed by a factor of at least two to one.
    (iii) The business combination will result in the preservation of a 
critical capability that might otherwise be lost

[[Page 7311]]

to DoD, and the audited projected savings will exceed the costs 
allowed.

[FR Doc. 98-3714 Filed 2-12-98; 8:45 am]
BILLING CODE 5000-04-M