[Federal Register Volume 68, Number 220 (Friday, November 14, 2003)]
[Rules and Regulations]
[Pages 64561-64568]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-28442]


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DEPARTMENT OF DEFENSE

48 CFR Part 216

[DFARS Case 2001-D013]


Defense Federal Acquisition Regulation Supplement; Provisional 
Award Fee Payments

AGENCY: Department of Defense (DoD).

ACTION: Final rule.

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SUMMARY: DoD has issued a final rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to address the use of 
provisional award fee payments under cost-plus-award-fee contracts. The 
rule provides for successfully performing contractors to receive a 
portion of award fees within an evaluation period prior to a final 
evaluation for that period.

DATES: Effective date: January 13, 2004.
    Applicability date: The DFARS changes in this rule apply to 
solicitations issued on or after January

[[Page 64562]]

13, 2004. Contracting officers may, at their discretion, apply the 
DFARS changes to solicitations issued before January 13, 2004, provided 
award of the resulting contract(s) occurs on or after January 13, 2004. 
Contracting officers may, at their discretion, apply the DFARS changes 
to any existing contract with appropriate consideration.

FOR FURTHER INFORMATION CONTACT: Mr. Ted Godlewski, 
OUSD(AT&L)DPAP(DAR), IMD 3C132, 3062 Defense Pentagon, Washington, DC 
20301-3062. Telephone (703) 602-2022; facsimile (703) 602-0350. Please 
cite DFARS Case 2001-D013.

SUPPLEMENTARY INFORMATION:

A. Background

    This final rule provides for the payment of provisional award fees 
within an evaluation period prior to a final evaluation for that 
period. The provisional payments would be based on (1) successful 
evaluations for prior evaluation periods, and (2) the expectation that 
payment of provisional fee amounts will not reduce the overall 
effectiveness of the award fee incentive. A training module on the use 
of provisional award fee payments is available on the Defense 
Acquisition University Web site at http://www.dau.mil, under 
``Continuous Learning.''
    DoD published a proposed rule at 67 FR 70388 on November 22, 2002. 
Seven respondents submitted comments on the proposed rule. A discussion 
of the comments is provided below. Differences between the proposed and 
final rules are explained in the DoD Response to Comments 5 and 10.
    1. Comment: The proposed policy appears to conflict with the 
Defense Finance and Accounting Service (DFAS) DFAS-IN Regulation 37-1, 
Table 8-1, which states that award fee must not be obligated until its 
amount is determined. If provisional award fee is allowed, the DFAS 
regulation should be revised to preclude confusion.
    DoD Response: Concur that DFAS may need to review its regulations 
to determine if revisions are required based on this DFARS rule.
    2. Comment: It is not clear what the difference is between doing 
provisional award fee determinations and simply doing more frequent 
final award fee determinations. Presumably, the process for doing a 
provisional award fee payment would not be as formal as that for doing 
a final award fee determination. Suggest that the policy state that the 
agency should use a streamlined process for doing a provisional award 
fee determination.
    DoD Response: DoD concurs with using a streamlined process for 
doing a provisional award fee determination, but this approach (i.e., 
the payment of part of available award fee without using all the 
formalities of a full-scale award fee determination) is already implied 
by the wording of the rule. The rule provides a framework, with the 
flexibility for contracting officers to implement the rule using 
processes that best fit their particular business needs.
    3. Comment: It may be advisable to establish a ceiling on the 
amount that may be given as a provisional award fee.
    DoD Response: Concur that there should be a ceiling; however, the 
rule already establishes a ceiling at 216.405-2(b)(3)(B)(1) and (2). 
The rule states that provisional award fee payments may not exceed 50 
percent of the award fee available for the initial award fee period, 
and may not exceed 80 percent of the evaluation score for the prior 
evaluation period times the award fee available for the current period. 
Contracting officers are free to establish lower provisional award fee 
amounts if they deem it to be in the Government's best interests.
    4. Comment: The policy should recognize that provisional award fees 
might not be feasible or appropriate in all situations. The agency may 
need to consider the ability of the vendor to provide data on incurred 
costs. It is common for a vendor with subcontractors to be several 
months behind in billing. Thus, a provisional determination linked to 
the value of work performed might be inaccurate. Or if the award fee is 
based on achievement of a milestone by a particular date, the argument 
could be made that giving a provisional award fee payment would 
actually reduce the effectiveness of the incentive. Therefore, the 
policy should cite examples of situations in which a provisional award 
fee payment would be appropriate.
    DoD Response: Partially concur. DoD agrees that provisional award 
fee payments may not be feasible or appropriate in all situations and, 
therefore, should be optional. The rule provides contracting officers 
the flexibility to determine where and how provisional award fee 
payments can best be employed. The rule reflects this position at DFARS 
216.405-2(b)(3), which states ``The CPAF contract may include 
provisional award fee payments.'' (emphasis added) However, it is not 
prudent to cite examples of situations in which a provisional award fee 
payment would be appropriate, because examples may be misinterpreted as 
the only situations in which this type of payment may be used.
    5. Comment: If the provisional award fee payment process is too 
informal, it would be subject to abuse or misapplication, e.g., if 
given without adequate justification or if given based on inaccurate 
data. This could lead to overpayment of award fee. Therefore, the 
policy should address recovery of any overpayment (e.g., by setoff or 
reduction in future award fee payments).
    DoD Response: Concur that the rule should address recovery of an 
overpayment. The proposed rule, at 216.405-2(b)(3)(C), required the 
contractor to either credit any overpayment on the next payment voucher 
or refund any overpayment, in accordance with directions from the 
contracting officer. Since the overpayment is actually a debt due the 
Government, the final rule contains a change in this paragraph to 
require the contracting officer to collect the debt in accordance with 
FAR 32.606, Debt determination and collection.
    6. Comment: The rule defeats the purpose of an award fee contract. 
By giving the contractor provisional payments on a monthly basis, you 
are in a sense turning an award fee contract into a fixed fee contract. 
The award fee pool is supposed to be tied to contractor performance, 
and provisional payments circumvent that by paying out a large 
percentage of the pool prior to the end of the evaluation period. Where 
is the incentive to perform? Furthermore, how can a contractor, deemed 
to have an adequate accounting system to support a cost-type contract, 
experience cash flow problems, especially when a large business can 
voucher for allowable costs every two weeks. In addition, has DoD 
considered the administrative burden of monthly provisional payments on 
the Government, i.e., monthly modifications?
    DoD Response: Provisional award fee payments do not turn an award 
fee contract into a fixed fee contract. The issue of entitlement is 
significantly different from the issue of timing. Provisional award fee 
payments only change the timing of the payments, not the entitlement to 
those payments. The contractor is incentivized, since the contractor 
must earn the award fee in exactly the same way as if there were no 
provisional award fee payments, i.e., entitlement to the award fee 
continues to be tied to contractor performance. Should the Government 
determine that the contractor is not entitled to the award fee, the 
contractor must return the provisional payments to the Government.

[[Page 64563]]

    As to the observation that contractors can voucher for all 
allowable costs on cost-type contracts every two weeks, it should be 
noted that not all unallowable costs are unavoidable. Contractors 
normally rely on the partial payment of fee for work accomplishment to 
cover unallowable costs, and to keep them out of a loss position on the 
contract as a whole. In particular, on high-dollar award fee contracts, 
the amount of award fee that is being held pending a formal award fee 
determination can be significant. As such, a standard award fee 
structure, instead of motivating and rewarding outstanding performance, 
can be a financial negative for a contractor. Without provisional award 
fee payments, some contractors may well prefer a smaller fixed fee that 
they know will arrive on a monthly basis to an award fee that, while 
possibly larger in amount, will be paid less frequently (e.g., not paid 
until the end of the award fee period).
    The use of provisional award fee payments is entirely optional. 
Contracting officers may choose to not employ provisional award fee 
payments when they believe such use would dilute the effectiveness of 
the award fee in a particular contract, would be an undue 
administrative burden, or would otherwise not be in the Government's 
best interests.
    7. Comment: Award fee administration is a very time consuming 
process. In accomplishing performance evaluations, great care is taken 
to adequately support awarding or withholding of award fee. This effort 
is done in a very careful, concise, and professional manner to avoid 
any appearance of arbitrary or capricious application of award fee 
criterion and to ensure that the contractor receives appropriate 
consideration for performance efforts.
    The ``Background'' information in the Federal Register notice of 
the proposed rule stated, ``Cost-reimbursement contracts containing 
award fees typically provide for an award fee payment no more 
frequently than every 6 months.'' However, the respondent's experience 
in working with cost-reimbursement contracts is that ``no more 
frequently'' is more appropriately ``no less frequently.'' Many of 
these contracts begin with 6-month evaluation periods. As complexity or 
dollar value increase, evaluation periods are reduced to as low as 3-
months (quarterly).
    Prior to awarding cost-reimbursement contracts, audits are 
requested to ensure that the contractor has a financial system in place 
to support adequately identifying cost and that the company has the 
financial capability to perform the contract. Normally the proposed 
award fee periods are identified in a solicitation, putting the 
contractor on notice of the Government's intent for award fee 
evaluation. Also, there is no prohibition against a contractor 
requesting contracting officer consideration for reducing the length of 
award fee periods should the contractor begin experiencing ``an undue 
financial burden.''
    If a contracting officer implements this rule, it would result in 
an arbitrary determination of potential award fee earnings based on 
past performance. This practice would not only increase Government 
administration of the process, but could potentially allow a contractor 
the use of Government funds prior to a true determination of actual 
earnings with no consideration (such as interest) being afforded the 
Government, should the funds ultimately be credited back to the 
Government following a proper performance evaluation. Award fee should 
always be earned, not paid on a credit or assumptive basis in order to 
fulfill the intended purpose of award fee, which is to incentivize a 
contractor's performance. Unless the provisional payment is tied to 
some performance period, it could be construed as a form of advance 
payment. Also, since other remedies are available should a contractor 
(probably a large business) experience ``undue financial burden,'' no 
need exists for this provision.
    DoD Response: Do not concur. Provisional award fee payments do not 
result in an arbitrary determination of potential award fee earnings 
based on past performance. The issues of entitlement, administrative 
burden, incentive to perform, and contractor cash flow are addressed in 
the DoD Response to Comment 6. With respect to the issue of interest on 
overpayments, as explained in the DoD Response to Comment 5, the final 
rule requires contractors to return any overpayment in accordance with 
FAR 32.606. FAR 32.610, Demand for payment of contract debt, states 
that any amounts not paid within 30 days from the date of the demand 
for payment will bear interest.
    Furthermore, provisional award fee payments are different from 
advance payments, since the amount of the payment for periods 
subsequent to the first evaluation period is based on performance in 
the prior evaluation period.
    8. Comment: The pitfalls associated with this proposal are greater 
than whatever benefits there may be for either party. The concept of 
award fees was established to provide incentive for performance such 
that if performance was provided in excess of certain thresholds, an 
award fee determining official would so declare after review of 
findings from an award fee board. The proposed change negates the 
concept of award fee to provide incentive for performance and, instead, 
establishes a means of cash payment to contractors for reasons other 
than incentive. In fact, this proposed change does nothing other than 
to establish cash flow expectations on the part of contractors that 
bear no relationship to fee earned in current periods until well after 
such determinations could be made AND related outlays have already been 
made.
    The Government assumes a greater share of risk when using cost-
reimbursable contracts, and compensates for this by providing the 
contractor with frequent billing provisions to cover all aggregated 
costs and fees incurred in each billing period (usually on a monthly 
basis). Therefore, contractor cash flow considerations are NOT factors 
in deciding whether or not to have award fee provisions in the first 
place, and they are also NOT factors in determinations of performance 
in award fee periods.
    The proposed change, if adopted, would pressure program managers to 
incorporate these provisions into existing contracts, especially those 
large systems contracts involving millions of dollars. Such adoption 
would subsequently give rise to the inherent presumption of entitlement 
during current award fee periods, even though actual entitlement 
determinations would not take place until after funds have been 
disbursed. As a result, additional administrative burdens on top of 
those already created by award fee provisions would be placed on 
program managers and contracting officers. This would be especially 
true in instances cited in proposed DFARS 216.405-2(b)(3)(C).
    This change would also create potential legal problems, especially 
in instances where DFARS 216.405-2(b)(3)(D) would be imposed. How does 
one protect the contracting officer determination from being appealed 
as being ``arbitrary and capricious,'' and how would such disputes 
alter or hinder ongoing contract performance until such matters are 
resolved?
    DoD Response: Do not concur. With respect to the comments on the 
incentive for performance, cash flow, entitlement, and administrative 
burden considerations, see the DoD Response to Comment 6.
    With respect to the comment on modifying existing contracts to 
include the requirement for provisional award fee payments, such 
modification could

[[Page 64564]]

only be considered if the contracting officer obtained adequate 
consideration. For future contracts, the rule relies upon agency 
procedures and contracting officer business judgment to determine if 
provisional award fee payments are appropriate for a particular 
contracting environment, rather than a ``one size fits all'' 
requirement.
    As to the respondent's perceived legal problems, the provisional 
award fee payment requirement falls within the award fee provisions of 
the contract, including the requirements in the FAR. FAR 16.405-2(a) 
states ``* * * The amount of the award fee to be paid is determined by 
the Government's judgmental evaluation of the contractor's performance 
in terms of the criteria stated in the contract. This determination and 
the methodology for determining the award fee are unilateral decisions 
made solely at the discretion of the Government.'' Although the 
determinations are unilateral, the United States Court of Appeals in 
Burnside-Ott Aviation Training Center v. Dalton, Secretary of the Navy, 
107F.3d 854 (Fed. Cir. 1997), held that disputes concerning the amount 
of the award fee are subject to the Contract Disputes Act. The Court 
also held that award fee determinations could continue to be committed 
to the discretion of contracting officers under the terms of the 
contract and would be upheld as long as they were not arbitrary or 
capricious. Therefore, the rule cannot state that provisional award fee 
payments are or are not disputable, since that determination may depend 
on other factors.
    This rule does not impose any significant additional risk of 
litigation. For periods subsequent to the initial evaluation period, 
the payments are based on the evaluation for the prior period. Thus, 
provided the prior evaluations are not arbitrary and capricious, there 
would be little, if any, basis for determining the provisional award 
fee payments to be arbitrary and capricious.
    However, should a dispute arise, such dispute would not alter or 
hinder ongoing contract performance. Paragraph (i) of the clause at FAR 
52.233-1, Disputes, states ``The Contractor shall proceed diligently 
with performance of this contract, pending final resolution of any 
request for relief, claim, appeal, or action arising under the 
contract, and comply with any decision of the Contracting Officer.''
    9. Comment. There is a need for an initial assessment of contractor 
performance by the fee determining official before the contracting 
officer pays any provisional award fees. This initial assessment can be 
done during the first interim evaluation. In return (for the initial 
wait), recommend up to 80% (vice proposed 50%) be awarded. In addition, 
also recommend that provisional award fee payments apply to fixed-price 
contracts with award fees.
    DoD Response: Do not concur. The role of the fee determining 
official in the provisional award fee payment process should be 
determined by the DoD department or agency based on the particular 
contracting environment. Accordingly, there is no standard guidance on 
the role of the fee determining official or even a standard award fee 
clause used throughout DoD. Buying activities may provide implementing 
guidance to the extent they deem it necessary to provide additional 
information regarding the role of the fee determining official in the 
payment of provisional award fees.
    Since the contractor's ``track record'' of performance on the 
contract will be limited for the initial award fee evaluation, it may 
be difficult to conclude that the contractor's performance for the 
initial contract period reflects a reasonable expectation of the 
performance for subsequent periods. Thus, it would not be prudent to 
build a higher limitation (i.e., 80 percent) for the initial period.
    Although DoD does not concur with increasing the ceiling for the 
initial period, a DoD department or agency may consider granting an 
individual, one-time deviation to this requirement if the department or 
agency believes that a specific contract is essentially a continuation 
of prior contracts for the same item or service and, hence, the 50 
percent limitation on the initial provisional payment is not really 
needed to protect the Government's interests.
    As to the use of provisional award fees in fixed-price-award-fee 
contracts, it should be noted that FAR 16.404(a)(1) indicates that a 
fixed-price-award-fee contract is a fixed-price contract that already 
has a normal profit included in the fixed price, which is paid for 
satisfactory performance. When other types of incentives cannot be 
used, a separate award fee provision can be added to a fixed-price 
contract to provide additional motivation and reward to a contractor 
for various achievements. The rationale that a provisional payment of 
award fee is necessary in order to allow the contractor to receive some 
profit or fee on work accomplished is greatly diminished, because a 
normal profit is already included within the fixed-price-award-fee 
contract structure. However, it is within a DoD department's or 
agency's deviation authority, on a one-time basis, to permit the use of 
provisional award fee payments under a fixed-price-award-fee contract 
if it is in the best interests of DoD.
    10. Comment: The following sentence from the rule (DFARS 216.405-
2(b)(3)) is misleading: ``A provisional award fee payment is a payment 
made within an evaluation period prior to an interim or final 
evaluation for that period.''
    The fee determining official must make a determination that 
contractor performance warrants payment of the interim award fee 
amount. This ``interim evaluation'' may be confused with any interim 
performance evaluations called out in the award fee plan that are not 
linked to periodic billings (and which may or may not occur before a 
periodic award fee billing).
    Suggest changing the sentence in the rule to read: ``A provisional 
award fee payment is a payment made within an evaluation period prior 
to the final determination for that period.''
    DoD Response: Concur that the rule may not be clear as to the 
timing of a provisional award fee payment. The rule was intended to 
define a provisional award fee payment as any payment made prior to an 
evaluation for the period. The language in the proposed rule could be 
misinterpreted to mean that, when provisional payments are used, they 
must provide for payments prior to any interim evaluation period. The 
rule is intended to provide flexibility to contracting officers in 
determining when to permit provisional payments, rather than requiring 
such payments prior to interim evaluation periods. Therefore, the 
sentence has been revised to read: ``A provisional award fee payment is 
a payment made within an evaluation period prior to a final evaluation 
for that period.''
    11. Comment: Recommend DFARS address the following:
    a. Contractor's performance must be commensurate with the 
provisional award fee payment.
    b. Contractor shall liquidate the debt as prescribed in FAR 32.6, 
Contract Debts, for overpayments made to the contractor by the 
Government.
    c. Provisional award fee payment determinations are/are not 
disputable.
    d. Role of the fee determining official in the provisional award 
fee payment process.
    DoD Response:
    a. Concur. The proposed rule already contained language at 216.405-
2(b)(3)(D) that ties the payment of provisional award fees to the 
contracting officer's determination that the contractor is performing 
at an

[[Page 64565]]

appropriate level commensurate with the proposed provisional award fee 
payment. This language has been retained in the final rule.
    b. Concur. DoD has added a reference to FAR 32.606 in the final 
rule at 216.405-2(b)(3)(C). Also see the DoD Response to Comment 5.
    c. Do not concur. See the DoD Response to Comment 8.
    d. Do not concur. See the DoD Response to Comment 9.
    12. Comment: The proposed change should not be incorporated as 
drafted. The reason stated for the change is that cost-reimbursement 
award fee contracts typically provide for an award fee payment no more 
frequently than every 6 months and that this may place an undue 
financial burden on a contractor. This premise seems unfounded. It is 
hard to rationalize that a contractor faces an undue financial burden 
under a contract arrangement that provides for the Government to 
reimburse all allowable contract costs as frequently as every two weeks 
(FAR 52.216-7, Allowable Cost and Payment). In cost-reimbursement 
contracts, it is the Government that assumes a greater share of the 
risk and compensates for this by providing the contractor with frequent 
billing provisions. Furthermore, contractor cash flow considerations 
are not factors in determining whether or not to have award fee 
provisions in the first place and are not factors in determinations of 
performance in award fee periods.
    DoD Response: Do not concur. See the DoD Response to Comment 6.
    13. Comment: This change would have the unintended consequence of 
defeating a prime benefit of an award fee contract. In an award fee 
type contract, the Government is able to hold the contractor's 
motivation and focus, since the contractor knows the award fee is not a 
given and is only obtained through successful performance each and 
every period. The proposed change diminishes this performance incentive 
concept and instead establishes a means of cash payment to contractors 
for reasons other than incentive. In fact, the proposed change does 
nothing other than to establish cash flow expectations on the part of 
contractors that bear no relationship to fee earned in current periods 
until well after such formal determinations and related outlays have 
been made. Also, there is no mention of base fee in this proposed 
change. Recommend, if this change is incorporated, that the provisional 
award fee payment only be used in cost-plus-award-fee contracts with 
zero base fee.
    DoD Response. Do not concur. See the DoD Response to Comment 6 for 
a discussion of performance incentive and cash flow. Regarding the 
recommendation that provisional award fee payments only be employed in 
contracts with zero base fees, the rule leaves that determination to 
the management discretion of DoD departments and agencies.
    14. Comment: Although there are procedures in the proposed rule for 
reimbursing the Government if the actual award fee determination is 
less than the provisional payment, the reality is that once received, 
the contractor is not going to be motivated to give the money back, 
thus leading to increased probability of disputes and potentially 
requiring significant additional time and effort to resolve. This type 
of ``tug of war'' will not add value to the contract administration 
process or to Government/contractor relationships.
    DoD Response: Do not concur. The maximum amount permitted for 
provisional payments (after the initial payment) is calculated at 80 
(not 100) percent of the evaluation score for the prior evaluation 
period times the award fee available for the current period. Therefore, 
it is anticipated that a very limited number of provisional award fee 
payments will be more than the actual award fee determinations for the 
current period. However, for those limited situations in which there 
are overpayments, see the DoD Response to Comment 5, which addresses 
Government procedures for collecting debt, and to Comment 8 for a 
discussion of contractor disputes.
    15. Comment: The change could create potential legal problems when 
the instances of DFARS 216.405-2(b)(3)(D) are imposed, whereby the 
contracting officer reduces or discontinues the provisional payment. 
Since this is proposed as a contracting officer determination, without 
mention of the award fee board or fee determining official, how does 
one protect the contracting officer's determination from being appealed 
as being arbitrary and capricious, and how would such disputes alter or 
hinder ongoing contract performance until such matters are resolved?
    DoD Response: As indicated in the DoD Response to Comment 14, it is 
anticipated that the overpayment of a provisional award fee payment 
will happen in a limited number of circumstances. However, when it does 
occur, it is expected that the contracting officer will have a 
reasonable basis for making such a decision. When the decision is based 
on a probability that the contractor is not going to earn the award 
fee, the contracting officer almost certainly will have obtained input 
from the award fee board or the fee determining official. However, 
there could be other instances, such as pending bankruptcy proceedings, 
which may make it necessary for the contracting officer to act without 
first consulting the award fee board or the fee determining official. 
In any case, it is anticipated that the contracting officer will use 
sound business judgment and will not make an ``arbitrary and 
capricious'' decision. If there is a dispute, the dispute would not 
alter or hinder ongoing contract performance, as explained in the DoD 
Response to Comment 8.
    16. Comment: The need for additional documentation and funding 
tracking will put an additional burden on program offices and may 
discourage the use of award fee arrangements, since the Government may 
not believe that the expected benefits are sufficient to warrant the 
additional effort and cost involved with managing and administering a 
more resource demanding award fee process. Program offices may also 
believe that the process of giving the contractor part of the award fee 
without having the payment tied to an interim evaluation (based on the 
award fee plan's criteria) dilutes the effectiveness of interim 
evaluations as motivators for increased performance.
    DoD Response: Partially concur. Although this type of payment may 
be administratively burdensome, its use is entirely optional. However, 
as explained in the DoD Response to Comment 6, DoD does not concur that 
provisional award fee payments will dilute the effectiveness of the 
interim evaluations.
    17. Comment: This proposed change blurs the line between a cost-
plus-award-fee and a cost-plus-fixed-fee type contract. A cost-plus-
award-fee contract should not be used when a cost-plus-fixed-fee 
contract is more appropriate, but since there is a 15% statutory fee 
limitation on a cost-plus-fixed-fee contract, but not on a cost-plus-
award-fee contract, contractors may use this change as an increased 
opportunity for optimal fee by pushing the Government to use a cost-
plus-award-fee contract when a more appropriate type would be cost-
plus-fixed-fee. Because the contract types are distinctively different, 
the payment of fee on a cost-plus-award-fee contract was not intended 
to be handled the same way it is handled on a cost-plus-fixed-fee 
contract. This proposed change moves award fee payment from the realm 
of subjective evaluation of fee earned to a type of numerical 
calculation (which is based on projected performance). A policy of 
interim payments based on assessments of

[[Page 64566]]

contractor performance and fee determining official concurrence 
provides a much better framework than that set forth in the DFARS 
language.
    DoD Response: Do not concur. Provisional award fee payments do not 
change the contract from a cost-plus-award-fee to a cost-plus-fixed-fee 
contract. As explained in the DoD Response to Comment 6, provisional 
award fee payments only change the timing of the payments, not the 
entitlement to those payments.
    Payment of a provisional award fee is not based purely on a 
numerical calculation. The numerical calculation merely establishes the 
maximum amount that might be paid as a provisional award fee. The 
actual amounts of provisional award fee payments are based on the 
assumption that the contracting officer has determined that those 
provisional payment amounts are commensurate with the contractor's 
performance.
    The rule does not provide specific procedures or rigid 
requirements. Thus, contracting officers have significant flexibility 
to implement provisional award fee payments as they deem appropriate 
for their particular contracting environments, e.g., using interim 
payments based on assessments of contractor performance and fee 
determining official concurrence.
    18. Comment: There are some differences between one DoD 
department's guidance and the proposed DFARS language. For example, 
DFARS--
    a. Does not restrict provisional award fee payments to cost-plus-
award-fee contracts with zero base fee;
    b. Does not prescribe a monthly payment option;
    c. Treats provisional payments almost as a normal business 
practice, which is appropriate since provisional payments benefit both 
the contractor and the Government. The contractor gets increased cash 
flow and the Government gets an increase in expenditures;
    d. Does not reference FAR Subpart 32.6 with respect to 
overpayments;
    e. Permits a smaller percentage (i.e., 50 percent) for the initial 
period;
    f. Does not say the contracting officer has the unilateral right to 
reduce or suspend, but does say payments may be reduced or 
discontinued; and
    g. Does not prescribe provisional award fee payments for fixed-
price-award-fee contracts.
    DoD Response: Concur that there may be differences between guidance 
issued by DoD departments and agencies, and the DFARS. DoD departments 
and agencies will be able to continue using their guidance, provided 
such guidance does not fall outside the general framework of this DFARS 
rule. Since the DFARS rule does not provide specific procedures or 
rigid requirements, DoD departments and agencies have significant 
flexibility to implement provisional award fee payments as they deem 
appropriate for their particular contracting environments. This 
includes specifying when provisional award fee payments are appropriate 
(e.g., only when there is zero based fee) and the frequency of payments 
(e.g., monthly, every two months). Zero based fee is also addressed in 
the DoD Response to Comment 13.
    DoD concurs with adding a reference to FAR Subpart 32.6 (see the 
DoD Response to Comment 5), and that the contracting office has certain 
unilateral rights (see the DoD Response to Comment 8). DoD does not 
concur with permitting the use of a percentage rate higher than 50 
percent for the initial period (see DoD Response to Comment 9), or to 
the use of provisional award fee payments for fixed-price-award-fee 
contracts (see DoD Response to Comment 9).
    19. Comment: The Financial Management Regulation and paragraphs 4.1 
and 45.2 of the Air Force Material Command Award Fee guide may need to 
be revised to be consistent with the DFARS rule. Will the DFARS be 
revised to allow provisional award fee payments and interim payments on 
fixed-price-award-fee contracts also?
    DoD Response: Other regulations and department/agency guidance may 
need to be revised based on implementation of this DFARS rule. However, 
as indicated in the DoD Response to Comment 18, DoD departments and 
agencies will be able to continue using their guidance, provided such 
guidance does not fall outside of the general framework of this rule.
    Regarding the use of provisional award fee payments for fixed-
price-award-fee contracts, as noted in the DoD Response to Comment 9, 
DoD does not concur with revising the DFARS to permit this type of 
payment under fixed-price-award-fee contracts.
    20. Comment: There is concern that the financial incentive/
motivation for outstanding performance will decrease if the contractor 
is paid a percentage of the potential award fee on a monthly basis 
prior to any type of formal evaluation/determination. What was once a 
true incentive contract is now a highbred cost-plus-fixed-fee type 
contract (with minimum incentive to control costs) with no financial 
tie into any type of performance based criteria (or at least not until 
much later in the award fee period).
    DoD Response: Do not concur. See the DoD Response to Comment 6.
    21. Comment: This puts the Government in a position to deal with 
additional administrative burden (i.e., modifications to add funding to 
a contract--as well as documentation to confirm that the contractor is 
performing successfully on a monthly basis) to pay the contractor a 
percentage of the award fee on a frequent basis. The intent is to use 
provisional award fee payments on a case-by-case basis, but will this 
really be true?
    Will the contracting officer authorize the monthly payments 
unilaterally or will the fee determining official have input on the 
decision (along with documentation)? If it is a contracting officer 
determination, what will happen if the contracting officer discontinues 
the payments and the contractor disputes it? There are also serious 
concerns over the potential situation of having to collect overpayments 
if the contractor does not earn the fee determining official's final 
determination for the period. What happens if the contract is 
terminated? Or if the contractor files bankruptcy? How will the fiscal 
year rules apply to overpayments?
    The Government is being placed in a position to relieve the 
financial burden (on a cost contract?) of a contractor. FAR 52.216-7 
permits payments on reimbursable costs as frequently as every two 
weeks. It is difficult to believe that a contractor would be put into 
an undue financial burden when in this position. Will the contractor be 
required to provide justification to the Government on their undue 
financial burden?
    If it has been determined that reducing the length of time between 
award fee periods is not feasible due to contract restraints, recommend 
that, if any type of partial payment is authorized, it should be tied 
directly to the interim evaluation based on the contractor successfully 
completing the evaluated performance criteria (i.e., one-time interim 
evaluation payment). This could be done approximately mid-point through 
the award fee period with the remainder of the potential award fee paid 
to the contractor at the end of the period, based on the fee 
determining official's final determination.
    DoD Response: Do not concur. The use of provisional award fee 
payments is entirely optional. DoD departments and agencies may choose 
not to employ provisional award fee payments when they believe such use 
would dilute the effectiveness of the award fee in a

[[Page 64567]]

particular contract, is an undue administrative burden, or is otherwise 
not in the Government's best interests.
    Under the rule, provisional award fee payments can be discontinued 
or reduced as deemed appropriate by the contracting officer. In 
applying this rule, it is anticipated that the contracting officer will 
have a reasonable basis for making such a decision. When the decision 
is based on a probability that the contractor is not going to earn the 
award fee, the contracting officer almost certainly will have obtained 
input from the award fee board or fee determining official. However, 
there could be other instances, such as pending bankruptcy proceedings, 
which may require the contracting officer to act without first 
consulting the award fee board or fee determining official. In any 
case, it is anticipated that the contracting officer will use sound 
business judgment and not make an arbitrary and capricious decision.
    For further information, see the DoD Response to Comment 6 
(administrative and financial burden), Comment 9 (role of the fee 
determining official), Comment 8 (contractor disputes), Comment 5 
(overpayments), and Comment 10 (timing of provisional payments).
    22. Comment: The incentive effect and cash flow benefits of 
provisional award fee payments will be achieved only if the provisional 
award fee payment provision is introduced as a customary practice. Fee 
is paid during performance on cost-plus-fixed-fee and cost-plus-
incentive-fee contracts, and it should be the same for cost-plus-award-
fee contracts. Since the Government is protected from risk by the terms 
included in the provisional award fee payment provision, there should 
be no hesitancy in making its use a customary and desirable incentive 
feature. Successfully performing contractors should be able to benefit 
from the improved cash flow that provisional award fee payments 
facilitate. Establishing criteria that standardize use of the 
provisional award fee payment, subject to the contracting officer's 
determination of continued successful performance, will encourage use 
of this important new provision, while not diminishing the ability of 
the contracting officer to discontinue or reduce the provisional award 
fee payment if the contractor's performance warrants a reduction. 
Recommend changing the last sentence in 216.405-2(b)(3) of the proposed 
rule to read: ``The contracting officer should include provisional 
award fee payments in a cost-plus-award-fee contract when the period of 
performance for the contract exceeds 12 months, provided those payments 
* * *.''
    DoD Response: Do not concur. As indicated in the DoD Response to 
Comment 4, the rule is optional, because a mandatory requirement to use 
provisional award fee payments could result in such payments being 
applied in situations where they would be inappropriate.
    23. Comment: DoD should strive to establish parity in how fee is 
billed for cost-plus-award-fee contracts, compared to how fee is billed 
under other incentive arrangements. Cost-plus-incentive-fee and fixed-
price-incentive contracts both include provisions for billing target 
fee or profit at a rate consistent with contractor performance. Just as 
contemplated in the provisional award fee payment approach, there is a 
provision for adjusting the fee or profit if the contractor's 
performance is above or below the projected target. In the case of the 
cost-plus-award-fee contract, where there is no pre-set formula, the 
best indication of projected performance is the contractor's 
performance evaluation from prior periods. Successfully performing 
contractors should continue receiving provisional award fee payments at 
the level they have demonstrated in prior periods, similar to the 
target with appropriate adjustments made in cost-plus-incentive-fee and 
fixed-price-incentive-fee contracts. This approach poses no risk to the 
Government, since the contracting officer can reduce or eliminate the 
provisional award fee payment when performance is not commensurate with 
the provisional payment, and any overpayment is fully recoverable. Such 
an approach will also simplify administration of the provisional award 
fee payments. Recommend replacing paragraph 216.405-2(b)(3)(B)(1) of 
the proposed rule with the following: ``For subsequent award fee 
periods, the evaluation score for the prior evaluation period shall be 
used as the provisional award fee payment rate.''
    DoD Response: Do not concur. The rule establishes a reasonable 
outside boundary, i.e., not to exceed 80 percent of the evaluation 
score for the prior evaluation period, assuming continued contractor 
performance at current levels of performance. The rule is not intended 
to create an automatic entitlement to award fee at the same level as 
that previously earned for the prior evaluation period. In addition, as 
indicated in the DoD Response to Comment 14, a ceiling of 80 percent 
should reduce the number of overpayments.
    24. Comment: Follow-on contracts represent a continuation of effort 
from the prior contract. Assuming successful performance on the prior 
contract, continuation of provisional award fee payments at the same 
rate experienced on the prior contract is appropriate, instead of 
reducing the rate to 50% for the first period of the follow-on 
contract. Suggest the following language be added to 216.405-
2(b)(3)(B)(3): ``(3) For follow-on contracts, the rate for the initial 
period will be the same as that awarded in the last period of the 
immediately preceding contract.''
    DoD Response: Do not concur. See the DoD Response to Comment 9.
    25. Comment: The training of the acquisition workforce and industry 
counterparts is essential for success and for achieving the desired 
result.
    DoD Response: Concur that training is important. A training module 
on the use of provisional award fee payments is available on the 
Defense Acquisition University Web site at http://www.dau.mil, under 
``Continuous Learning.''
    26. Comment: Recommend that DoD initiate the process to make these 
provisions applicable on a Governmentwide basis through FAR revisions.
    DoD Response: Do not concur, since individual agencies (e.g., the 
National Aeronautics and Space Administration) craft their own versions 
of award fee provisions, and their own guidance for the use of those 
provisions. Governmentwide application of this coverage would only be 
appropriate if it is someday deemed advisable to create a single award 
fee provision and policy for use by all Government agencies.
    This rule was not subject to Office of Management and Budget review 
under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

    DoD certifies that this final 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., 
because the rule applies only to cost-plus-award-fee contracts. Most 
contracts awarded to small entities use simplified acquisition 
procedures or are awarded on a competitive, fixed-price basis.

C. Paperwork Reduction Act

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

[[Page 64568]]

List of Subjects in 48 CFR Part 216

    Government procurement.

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

0
Therefore, 48 CFR Part 216 is amended as follows:
0
1. The authority citation for 48 CFR Part 216 continues to read as 
follows:

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

PART 216--TYPES OF CONTRACTS

0
2. Section 216.405-2 is amended by adding paragraph (b)(3) to read as 
follows:


216.405-2  Cost-plus-award-fee contracts.

* * * * *
    (b) * * *
    (3) The CPAF contract may include provisional award fee payments. A 
provisional award fee payment is a payment made within an evaluation 
period prior to a final evaluation for that period. The contracting 
officer may include provisional award fee payments in a CPAF contract 
on a case-by-case basis, provided those payments--
    (A) Are made no more frequently than monthly;
    (B) Are limited to no more than--
    (1) For the initial award fee evaluation period, 50 percent of the 
award fee available for that period; and
    (2) For subsequent award fee evaluation periods, 80 percent of the 
evaluation score for the prior evaluation period times the award fee 
available for the current period, e.g., if the contractor received 90 
percent of the award fee available for the prior evaluation period, 
provisional payments for the current period shall not exceed 72 percent 
(90 percent x 80 percent) of the award fee available for the current 
period;
    (C) Are superceded by an interim or final award fee evaluation for 
the applicable evaluation period. If provisional payments have exceeded 
the payment determined by the evaluation score for the applicable 
period, the contracting officer shall collect the debt in accordance 
with FAR 32.606; and
    (D) May be discontinued, or reduced in such amounts deemed 
appropriate by the contracting officer, when the contracting officer 
determines that the contractor will not achieve a level of performance 
commensurate with the provisional payment. The contracting officer 
shall notify the contractor in writing of any discontinuance or 
reduction in provisional award fee payments.
* * * * *

[FR Doc. 03-28442 Filed 11-13-03; 8:45 am]
BILLING CODE 5001-08-P