[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.

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

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: farcase.98-
[email protected]. 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