[Federal Register Volume 68, Number 20 (Thursday, January 30, 2003)]
[Proposed Rules]
[Pages 4880-4883]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-1963]



[[Page 4879]]

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Part VII





Department of Defense

General Services Administration

National Aeronautics and Space Administration





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48 CFR Parts 31 and 52



Federal Acquisition Regulation; Insurance and Pension Costs; Proposed 
Rule

  Federal Register / Vol. 68, No. 20 / Thursday, January 30, 2003 / 
Proposed Rules  

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 31 and 52

[FAR Case 2001-037]
RIN 9000-AJ57


Federal Acquisition Regulation; Insurance and Pension Costs

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 (Councils) are proposing to amend the 
Federal Acquisition Regulation (FAR) to amend the insurance and 
indemnification cost principle and the portion of the compensation cost 
principle relating to pension costs.

DATES: Interested parties should submit comments in writing on or 
before March 31, 2003 to be considered in the formulation of a final 
rule.

ADDRESSES: Submit written comments to--General Services Administration, 
FAR Secretariat (MVA), 1800 F Street, NW., Room 4035, Attn: Laurie 
Duarte, Washington, DC 20405.
    Submit electronic comments via the Internet to--farcase.2001-
[email protected].
    Please submit comments only and cite FAR case 2001-037 in all 
correspondence related to this case.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS 
Building, Washington, DC 20405, at (202) 501-4755 for information 
pertaining to status or publication schedules. For clarification of 
content, contact Mr. Ralph De Stefano at (202) 501-1758. Please cite 
FAR case 2001-037.

SUPPLEMENTARY INFORMATION: 

A. Background

    The Councils have performed an analysis of FAR 31.205-6(j), Pension 
costs, and FAR 31.205-19, Insurance and indemnification, and propose 
the following revisions:
    1. Substitute the term ``assign'' for the term ``account'' in the 
newly renumbered paragraphs (j)(1) and (j)(5) of FAR 31.205-6 in order 
to be consistent with the terminology used in 48 CFR 9904.412, Cost 
Accounting Standard for Composition and Measurement of Pension Cost 
(CAS 412), and 48 CFR 9904.413, Adjustment and Allocation of Pension 
Cost (CAS 413).
    2. Revise the current paragraph (j)(4)(i) (renumbered as (j)(3)(i)) 
at FAR 31.205-6 and the contract clause at FAR 52.215-15 to 
specifically address how the Government will receive the pension cost 
adjustment amount when there is a segment closing, a pension plan 
termination, or a curtailment of benefits for CAS-covered and non-CAS-
covered contracts.
    3. Move and revise the current paragraph FAR 31.205-6(j)(8) that 
addresses employee stock ownership plans (ESOPs).
    a. Move the discussion of ESOPs out of the current paragraph FAR 
31.205-6(j) that addresses pension plans to a new paragraph FAR 31.205-
6(q) so that the discussion of ESOPs is included in the coverage 
addressing all deferred compensation plans, both pension and 
nonpension.
    b. Delete the term ``individual'' from the phrase ``individual 
stock bonus plan'' to preclude misinterpretation that a separate plan 
is required for each employee.
    c. Add the term ``primarily'' to the phrase ``invest in the stock 
of the employer corporation'' to clarify that an ESOP does not have to 
invest 100 percent in the stock of the employer corporation.
    d. Consistent with current policies and recent developments in 
applicable case law, clarify that ESOP costs are to be measured, 
assigned and allocated in accordance with 48 CFR 9904.412 for ESOPs 
that meet the definition of a pension plan, and in accordance with 48 
CFR 9904.415, Accounting for the Cost of Deferred Compensation, for all 
other ESOPs. As ESOP accounting techniques continue to evolve, this FAR 
provision may require further modifications, e.g., if the present CAS 
treatment of this topic is changed as a result of the current ESOP 
project being pursued by the CAS Board.
    e. Increase the limitation of ESOP contributions in any one year 
from 15 percent to 25 percent, which is consistent with the Internal 
Revenue Code limitation on ESOP contributions for corporations.
    f. Remove the requirement for the contracting officer to approve 
the contribution rate in order to be consistent with the requirements 
for defined contribution pension and deferred compensation plans that 
are not ESOPs.
    4. Eliminate the discount rate provision at the current paragraph 
FAR 31.205-19(a)(3)(i). The CAS Board revised 48 CFR 9904.416, 
Accounting for Insurance Costs, to use the Treasury Rate, which is the 
same rate currently contained in the insurance and indemnification cost 
principle. Therefore, it is no longer necessary for the cost principle 
to specify the discount rate.
    5. Other editorial changes. The rule makes other editorial changes, 
including deleting--
    a. The current paragraph FAR 31.205-6(j)(1) since FAR 31.001 
already has a definition of ``pension plan'' that is the same as the 
definition in CAS 412 and 413;
    b. The descriptions of defined-benefit pension plans at FAR 31.205-
6(j)(3) and defined-contribution pension plans at FAR 31.205-6(j)(5) 
since the definitions of these terms are currently at FAR 31.001.
    c. References to ``reasonableness'' and ``allocability'' currently 
found at FAR 31.205-6(j)(2)(ii) and (j)(3)(ii) because these general 
allowability standards are already addressed at FAR 31.201-2 and FAR 
31.201-3. The Councils do not intend to make these changes to alter any 
current policy.
    This is not a significant regulatory action and, therefore, was not 
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.

B. Regulatory Flexibility Act

    The Councils do not expect this proposed rule 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 principles that are 
discussed in this rule. An Initial Regulatory Flexibility Analysis has, 
therefore, not been performed. We invite comments from small businesses 
and other interested parties. The Councils will consider comments from 
small entities concerning the affected FAR parts in accordance with 5 
U.S.C. 610. Interested parties must submit such comments separately and 
should cite 5 U.S.C. 601, et seq. (FAR case 2001-037), in 
correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the proposed 
changes to the FAR do not impose information collection requirements 
that require the

[[Page 4881]]

approval of the Office of Management and Budget under 44 U.S.C. 3501, 
et seq.

List of Subjects in 48 CFR Parts 31 and 52

    Government procurement.

    Dated: January 23, 2003.
Al Matera,
Director, Acquisition Policy Division.
    Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 31 and 
52 as set forth below:
    1. The authority citation for 48 CFR parts 31 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 31--CONTRACT COST PRINCIPLES AND PROCEDURES

    2. Amend section 31.205-6 by--
    a. Removing from the second sentence of paragraph (g)(1) ``(j)(7)'' 
and adding ``(j)(6)'' in its place;
    b. Revising paragraph (j);
    c. Removing from the second parenthetical in paragraph (p)(2)(i) 
``paragraphs (j)(5) and (j)(8)'' and adding ``paragraphs (j)(4) and 
(q)'' in its place; and
    d. Adding paragraph (q) to read as follows:


31.205-6  Compensation for personal services.

* * * * *
    (j) Pension costs. (1) Pension plans are normally segregated into 
two types of plans: defined-benefit and defined-contribution pension 
plans. The contractor shall measure, assign, and allocate the costs of 
all defined-benefit pension plans and the costs of all defined-
contribution pension plans in compliance with 48 CFR 9904.412--Cost 
Accounting Standard for Composition and Measurement of Pension Cost, 
and 48 CFR 9904.413--Adjustment and Allocation of Pension Cost. Pension 
costs are allowable subject to the referenced standards and the cost 
limitations and exclusions set forth in paragraph (j)(1)(i) and in 
paragraphs (j)(2) through (j)(6) of this section.
    (i) Except for nonqualified pension plans using the pay-as-you-go 
cost method, to be allowable in the current year, the contractor shall 
fund pension costs by the time set for filing of the Federal income tax 
return or any extension. Pension costs assigned to the current year, 
but not funded by the tax return time, are not allowable in any 
subsequent year. For nonqualified pension plans using the pay-as-you-go 
method, to be allowable in the current year, the contractor shall 
allocate pension costs in the cost accounting period that the pension 
costs are assigned.
    (ii) Pension payments must be paid pursuant to an agreement entered 
into in good faith between the contractor and employees before the work 
or services are performed; and the terms and conditions of the 
established plan. The cost of changes in pension plans are not 
allowable if the changes are discriminatory to the Government or are 
not intended to be applied consistently for all employees under similar 
circumstances in the future.
    (iii) Except as provided for early retirement benefits in paragraph 
(j)(6) of this subsection, one-time-only pension supplements not 
available to all participants of the basic plan are not allowable as 
pension costs, unless the supplemental benefits represent a separate 
pension plan and the benefits are payable for life at the option of the 
employee.
    (iv) Increases in payments to previously retired plan participants 
covering cost-of-living adjustments are allowable if paid in accordance 
with a policy or practice consistently followed.
    (2) Defined-benefit pension plans. The cost limitations and 
exclusions pertaining to defined-benefit plans are as follows:
    (i)(A) Except for nonqualified pension plans, pension costs (see 48 
CFR 9904.412-40(a)(1)) assigned to the current accounting period, but 
not funded during it, are not allowable in subsequent years (except 
that a payment made to a fund by the time set for filing the Federal 
income tax return or any extension thereof is considered to have been 
made during such taxable year). However, any portion of pension cost 
computed for a cost accounting period, that exceeds the amount required 
to be funded pursuant to a waiver granted under the provisions of the 
Employee Retirement Income Security Act of 1974 (ERISA), will be 
allowable in those future accounting periods in which the funding of 
such excess amounts occurs (see 48 CFR 9904.412-50(c)(5)).
    (B) For nonqualified pension plans, except those using the pay-as-
you-go cost method, allowable costs are limited to the amount allocable 
in accordance with 48 CFR 9904.412-50(d)(2).
    (C) For nonqualified pension plans using the pay-as-you-go cost 
method, allowable costs are limited to the amounts allocable in 
accordance with 48 CFR 9904.412-50(d)(3).
    (ii) Any amount funded in excess of the pension cost assigned to a 
cost accounting period is not allowable in that period and shall be 
accounted for as set forth at 48 CFR 9904.412-50(a)(4). The excess 
amount is allowable in the future period to which it is assigned, to 
the extent it is not otherwise unallowable.
    (iii) Increased pension costs are unallowable if the increase is 
caused by a delay in funding beyond 30 days after each quarter of the 
year to which they are assignable. If a composite rate is used for 
allocating pension costs between the segments of a company and if, 
because of differences in the timing of the funding by the segments, an 
inequity exists, allowable pension costs for each segment will be 
limited to that particular segment's calculation of pension costs as 
provided for in 48 CFR 9904.413-50(c). The contractor shall make 
determinations of unallowable costs in accordance with the actuarial 
method used in calculating pension costs.
    (iv) The contracting officer will consider the allowability of the 
cost of indemnifying the Pension Benefit Guaranty Corporation (PBGC) 
under ERISA section 4062 or 4064 arising from terminating an employee 
deferred compensation plan on a case-by-case basis, provided that if 
insurance was required by the PBGC under ERISA section 4023, it was so 
obtained and the indemnification payment is not recoverable under the 
insurance. Consideration under the foregoing circumstances will be 
primarily for the purpose of appraising the extent to which the 
indemnification payment is allocable to Government work. If a 
beneficial or other equitable relationship exists, the Government will 
participate, despite the requirements of 31.205-19(c)(3) and (d)(3), in 
the indemnification payment to the extent of its fair share.
    (v) Increased pension costs resulting from the withdrawal of assets 
from a pension fund and transfer to another employee benefit plan fund, 
or transfer of assets to another account within the same fund, are 
unallowable except to the extent authorized by an advance agreement. If 
the withdrawal of assets from a pension fund is a plan termination 
under ERISA, the provisions of paragraph (j)(3) of this subsection 
apply. The advance agreement shall--
    (A) State the amount of the Government's equitable share in the 
gross amount withdrawn or transferred; and
    (B) Provide that the Government receive a credit equal to the 
amount of the Government's equitable share of the gross withdrawal or 
transfer.
    (3) Pension adjustments and asset reversions. (i) For segment 
closings, pension plan terminations, or

[[Page 4882]]

curtailment of benefits, the amount of the adjustment shall be--
    (A) For contracts and subcontracts that are subject to full 
coverage under the Cost Accounting Standards (CAS) Board rules and 
regulations, the amount measured, assigned, and allocated in accordance 
with 48 CFR 9904.413-50(c)(12);
    (B) For contracts and subcontracts that are not subject to full 
coverage under the CAS, the amount measured, assigned, and allocated in 
accordance with 48 CFR 9904.413-50(c)(12), except the numerator of the 
fraction at 48 CFR 9904.413-50(c)(12)(vi) is the sum of the pension 
plan costs allocated to all non-CAS-covered contracts and subcontracts 
that are subject to Subpart 31.2 or for which cost or pricing data were 
submitted; and
    (C) Credited to the Government either as a cost reduction or by 
cash refund, at the option of the Government.
    (ii) For all other situations where assets revert to the 
contractor, or such assets are constructively received by it for any 
reason, the contractor shall, at the Government's option, 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 cost or pricing data were submitted or that are subject to 
Subpart 31.2. Excise taxes on pension plan asset reversions or 
withdrawals under this paragraph (j)(3)(ii) are unallowable in 
accordance with 31.205-41(b)(6).
    (4) Defined-Contribution Pension Plans. In addition to defined-
contribution pension plans, this paragraph also covers profit sharing, 
savings plans, and other such plans, provided the plans fall within the 
definition of a pension plan at 31.001.
    (i) Allowable pension cost is limited to the net contribution 
required to be made for a cost accounting period after taking into 
account dividends and other credits, where applicable. However, any 
portion of pension cost computed for a cost accounting period that 
exceeds the amount required to be funded pursuant to a waiver granted 
under the provisions of ERISA will be allowable in those future 
accounting periods in which the funding of such excess amounts occurs 
(see 48 CFR 9904.412-50(c)(5)).
    (ii) The provisions of paragraphs (j)(2)(ii) and (iv) of this 
subsection apply to defined-contribution plans.
    (5) Pension plans using the pay-as-you-go cost method. When using 
the pay-as-you-go cost method, the contractor shall measure, assign, 
and allocate the cost of pension plans in accordance with 48 CFR 
9904.412 and 9904.413. Pension costs for a pension plan using the pay-
as-you-go cost method are allowable to the extent they are not 
otherwise unallowable.
    (6) Early Retirement Incentives. An early retirement incentive is 
an incentive given to an employee to retire early. For contract costing 
purposes, costs of early retirement incentives are allowable subject to 
the pension cost criteria contained in paragraphs (j)(2)(i) through 
(iv) of this section provided--
    (i) The contractor measures, assigns, and allocates the costs in 
accordance with the contractor's accounting practices for pension 
costs;
    (ii) The incentives are in accordance with the terms and conditions 
of an early retirement incentive plan;
    (iii) The contractor applies the plan only to active employees. The 
cost of extending the plan to employees who retired or were terminated 
before the adoption of the plan is unallowable; and
    (iv) The present value of the total incentives given to any 
employee in excess of the amount of the employee's annual salary for 
the previous fiscal year before the employee's retirement is 
unallowable. The contractor shall compute the present value in 
accordance with its accounting practices for pension costs. The 
contractor shall account for any unallowable costs in accordance with 
48 CFR 9904.412-50(a)(2).
* * * * *
    (q) Employee stock ownership plans (ESOP). (1) An ESOP is a stock 
bonus plan designed to invest primarily in the stock of the employer 
corporation. The contractor's contributions to an Employee Stock 
Ownership Trust (ESOT) may be in the form of cash, stock, or property.
    (2) Costs of ESOPs are allowable subject to the following 
conditions:
    (i) For ESOPs that meet the definition of a pension plan at 31.001, 
the contractor--
    (A) Measures, assigns, and allocates the costs in accordance with 
48 CFR 9904.412;
    (B) Funds the pension costs by the time set for filing of the 
Federal income tax return or any extension. Pension costs assigned to 
the current year, but not funded by the tax return time, are not 
allowable in any subsequent year; and
    (C) Meets the requirements of paragraph (j)(2)(ii) of this section.
    (ii) For ESOPs that do not meet the definition of a pension plan at 
31.001, the contractor measures, assigns, and allocated costs in 
accordance with 48 CFR 9904.415.
    (iii) Contributions by the contractor in any one year that exceed 
25 percent of salaries and wages of employees participating in the plan 
in that year are unallowable.
    (iv) When the contribution is in the form of stock, the value of 
the stock contribution is limited to the fair market value of the stock 
on the date that title is effectively transferred to the trust.
    (v) When the contribution is in the form of cash--
    (A) Stock purchases by the ESOT in excess of fair market value are 
unallowable; and
    (B) When stock purchases are in excess of fair market value, the 
contractor shall credit the amount of the excess to the same indirect 
cost pools that were charged for the ESOP contributions in the year in 
which the stock purchase occurs. However, when the trust purchases the 
stock with borrowed funds which will be repaid over a period of years 
by cash contributions from the contractor to the trust, the contractor 
shall credit the excess price over fair market value to the indirect 
cost pools pro rata over the period of years during which the 
contractor contributes the cash used by the trust to repay the loan.
    (vi) When the fair market value of unissued stock or stock of a 
closely held corporation is not readily determinable, the valuation 
will be made on a case-by-case basis taking into consideration the 
guidelines for valuation used by the IRS.
* * * * *
    3. Revise section 31.205-19 to read as follows:


31.205-19  Insurance and indemnification.

    (a) Insurance by purchase or by self-insuring includes--
    (1) Coverage the contractor is required to carry or to have 
approved, under the terms of the contract; and
    (2) Any other coverage the contractor maintains in connection with 
the general conduct of its business.
    (b) For purposes of applying the provisions of this subsection, the 
Government considers insurance provided by captive insurers (insurers 
owned by or under control of the contractor) as self-insurance, and 
charges for it shall comply with the provisions applicable to self-
insurance costs in this subsection. However, if the captive insurer 
also sells insurance to the general public in substantial quantities 
and it can be demonstrated that the charge to the contractor is based 
on competitive market forces, the Government will consider the 
insurance as purchased insurance.
    (c) Whether or not the contract is subject to CAS, self-insurance 
charges

[[Page 4883]]

are allowable subject to paragraph (e) of this subsection and the 
following limitations:
    (1) The contractor shall measure, assign, and allocate costs in 
accordance with 48 CFR 9904.416, Accounting for Insurance Costs.
    (2) The contractor shall comply with FAR Part 28. However, approval 
of a contractor's insurance program in accordance with FAR Part 28 does 
not constitute a determination as to the allowability of the program's 
cost.
    (3) If purchased insurance is available, any self-insurance charge 
plus insurance administration expenses in excess of the cost of 
comparable purchased insurance plus associated insurance administration 
expenses is unallowable.
    (4) Self-insurance charges for risks of catastrophic losses (large 
dollar coverage with a very low frequency of loss) are unallowable (see 
48 CFR 28.308(e)).
    (d) Purchased insurance costs are allowable, subject to paragraph 
(e) of this subsection and the following limitations:
    (1) For contracts subject to full CAS coverage, the contractor 
shall measure, assign, and allocate costs in accordance with 48 CFR 
9904.416.
    (2) For all contracts, premiums for insurance purchased from 
fronting insurance companies (insurance companies not related to the 
contractor but who reinsure with a captive insurer of the contractor) 
are unallowable to the extent they exceed the sum of--
    (i) The amount that would have been allowed had the contractor 
insured directly with the captive insurer; and
    (ii) Reasonable fronting company charges for services rendered.
    (3) Actual losses are unallowable unless expressly provided for in 
the contract, except--
    (i) Losses incurred under the nominal deductible provisions of 
purchased insurance, in keeping with sound business practice, are 
allowable; and
    (ii) Minor losses, such as spoilage, breakage, and disappearance of 
small hand tools that occur in the ordinary course of business and that 
are not covered by insurance are allowable.
    (e) Self-insurance and purchased insurance costs are subject to the 
cost limitations in the following paragraphs:
    (1) Costs of insurance required or approved pursuant to the 
contract are allowable.
    (2) Costs of insurance maintained by the contractor in connection 
with the general conduct of its business are allowable subject to the 
following limitations:
    (i) Types and extent of coverage shall follow sound business 
practice, and the rates and premiums shall be reasonable.
    (ii) Costs allowed for business interruption or other similar 
insurance shall be limited to exclude coverage of profit.
    (iii) The cost of property insurance premiums for insurance 
coverage in excess of the acquisition cost of the insured assets is 
allowable only when the contractor has a formal written policy assuring 
that in the event the insured property is involuntarily converted, the 
new asset shall be valued at the book value of the replaced asset plus 
or minus adjustments for differences between insurance proceeds and 
actual replacement cost. If the contractor does not have such a formal 
written policy, the cost of premiums for insurance coverage in excess 
of the acquisition cost of the insured asset is unallowable.
    (iv) Costs of insurance for the risk of loss of, or damage to, 
Government property are allowable only to the extent that the 
contractor is liable for such loss or damage and such insurance does 
not cover loss or damage which results from willful misconduct or lack 
of good faith on the part of any of the contractor's directors or 
officers, or other equivalent representatives.
    (v) Costs of insurance on the lives of officers, partners, 
proprietors, or employees are allowable only to the extent that the 
insurance represents additional compensation (see 31.205-6).
    (3) The cost of insurance to protect the contractor against the 
costs of correcting its own defects in materials and workmanship is 
unallowable. However, insurance costs to cover fortuitous or casualty 
losses resulting from defects in materials or workmanship are allowable 
as a normal business expense.
    (4) Premiums for retroactive or backdated insurance written to 
cover losses that have occurred and are known are unallowable.
    (5) The Government is obligated to indemnify the contractor only to 
the extent authorized by law, as expressly provided for in the 
contract, except as provided in paragraph (d)(3) of this subsection.
    (6) Late premium payment charges related to employee deferred 
compensation plan insurance incurred pursuant to Section 4007 (29 
U.S.C. 1307) or Section 4023 (29 U.S.C. 1323) of the Employee 
Retirement Income Security Act of 1974 are unallowable.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    4. Amend section 52.215-15 by revising the date of the clause and 
paragraph (b) to read as follows:


52.215-15  Pension Adjustments and Asset Reversions.

* * * * *

Pension Adjustments and Asset Reversions (Date)

* * * * *
    (b) For segment closings, pension plan terminations, or 
curtailment of benefits, the amount of the adjustment shall be--
    (1) For contracts and subcontracts that are subject to full 
coverage under the Cost Accounting Standards (CAS) Board rules and 
regulations (48 CFR Chapter 99), the amount measured, assigned, and 
allocated in accordance with 48 CFR 9904.413-50(c)(12);
    (2) For contracts and subcontracts that are not subject to full 
coverage under the CAS, the amount measured, assigned, and allocated 
in accordance with 48 CFR 9904.413-50(c)(12), except the numerator 
of the fraction at 48 CFR 904.413-50(c)(12)(vi) shall be the sum of 
the pension plan costs allocated to all non-CAS covered contracts 
and subcontracts that are subject to Federal Acquisition Regulation 
(FAR) Subpart 31.2 or for which cost or pricing data were submitted; 
and
    (3) Credited to the Government either as a cost reduction or by 
cash refund, at the option of the Government.

* * * * *
(End of Clause)
[FR Doc. 03-1963 Filed 1-29-03; 8:45 am]
BILLING CODE 6820-EP-P