[Federal Register Volume 69, Number 135 (Thursday, July 15, 2004)]
[Proposed Rules]
[Pages 42545-42547]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-15815]



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Part III





Department of Defense

General Services Administration

National Aeronautics and Space Administration





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48 CFR Parts 45 and 52



Federal Acquisition Regulation; Government Prope

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rty Rental and Special Tooling; Proposed Rule

  Federal Register / Vol. 69, No. 135 / Thursday, July 15, 2004 / 
Proposed Rules  
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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 45 and 52

[FAR Case 2002-015]
RIN 9000-AJ99


Federal Acquisition Regulation; Government Property Rental and 
Special Tooling

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) by incorporating the Class 
Deviations regarding use and charges and special tooling, both of which 
have been applicable to the Department of Defense since 1998. Both 
deviations are appropriate for application across the Federal 
Government. The change clarifies the basis for determining the rental 
charges for the use of Government property and is intended to promote 
the dual use of such property. It also revises the special tooling 
clause and addresses the issue of title to special tooling.

DATES:  Interested parties should submit comments in writing on or 
before September 13, 2004 to be considered in the formulation of a 
final rule.

ADDRESSES:  Submit comments identified by FAR case 2002-015 by any of 
the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Agency Web Site: http://www.acqnet.gov/far/ProposedRules/proposed.htm. Click on the FAR case number to submit comments.
     E-mail: [email protected]. Include FAR case 2002-
015 in the subject line of the message.
     Fax: 202-501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (VR), 1800 F Street, NW, Room 4035, ATTN: Laurie Duarte, 
Washington, DC 20405.
    Instructions: Please submit comments only and cite FAR case 2002-
015 in all correspondence related to this case. All comments received 
will be posted without change to http://www.acqnet.gov/far/ProposedRules/proposed.htm, including any personal information 
provided.

FOR FURTHER INFORMATION CONTACT:  The FAR Secretariat at (202) 501-4755 
for information pertaining to status or publication schedules. For 
clarification of content, contact Ms. Jeritta Parnell, Procurement 
Analyst, at (202) 501-4082. Please cite FAR case 2002-015.

SUPPLEMENTARY INFORMATION:

A. Background

    The proposed rule incorporates two Department of Defense class 
deviations 98-O0010, Use and Charges, and 98-O0011, Special Tooling, 
into FAR Part 45 and makes appropriate revisions to FAR 52.245-9, Use 
and Charges, and FAR 52.245-17, Special Tooling. The proposed rule 
establishes, as the basis for rental charges, the time property is 
actually used for commercial purposes, rather than time available for 
use; permits contractors to obtain property appraisals from independent 
appraisers; permits appraisal-based rentals for all property; and 
allows contracting officers to consider alternate bases for determining 
rentals. These changes are intended to encourage dual use of Government 
property. The revised rental calculation would also be used in the 
procedures for eliminating competitive advantage associated with 
contractor possession of Government property (see FAR Subpart 45.2).
    With respect to special tooling, the proposed rule substitutes a 
substantially revised special tooling clause for the clause at 52.245-
17, Special Tooling, and waives that portion of the clause at 52.245-2, 
Government Property (Fixed-Price Contracts), that states that special 
tooling is subject to title provisions in that latter clause. The 
revised clause adds title provisions.
    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. 
Adoption of the proposed changes may have a slight reduction in 
recordkeeping requirements for civilian agency contractors and would 
decrease the amount of information required under the reporting 
requirements. An Initial Regulatory Flexibility Analysis has, 
therefore, not been performed. The Councils invite comments from small 
businesses and other interested parties. The Councils will consider 
comments from small entities concerning the affected FAR Parts 45 and 
52 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 
2002-015), in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does apply; however, these changes to 
the FAR do not impose additional information collection requirements to 
the paperwork burden previously approved under OMB Control Number 9000-
0075.
    We are publishing the current burdens associated with this case for 
your information. The following information for OMB Clearance 9000-0075 
is provided:

Annual Reporting Burden:

    FAR 52.245-9 and 45.302-6(c). The Government property is provided 
to contractors on a rent-free use basis. However, we estimate that 10 
percent of all contractors use property that requires rental payments. 
We estimate that 500 contractors submit 4 quarterly reports, and that 
it takes 1 hour to store, retrieve, prepare and submit the report.
    Respondents: 500
    Responses per respondent: 4
    Total annual responses:  2,000
    Preparation hours per response:  1
    Total response burden hours:  2000
    FAR 52.245-17(f)(1) and 45.306-5. We estimate that approximately 
900 contractors have special tooling. Using the 900 as a baseline, we 
estimate that 75 contractors also must maintain records on special 
tooling that they actually produce. We estimate that each contractor 
maintains 200 records and it takes 30 minutes to prepare each record.
    Respondents: 75
    Responses per respondent: 200
    Total annual responses:  15,000
    Preparation hours per response:  .5
    Total response burden hours:  7,500
    The FAR requires three lists. We added hours for the initial list 
of special tooling and the final list of special tooling. The excess 
list of special tooling is covered in the paragraph below. We 
calculated additional hours as follows:
    Respondents: 900
    Responses per respondent: 10
    Total annual responses:  9,000
    Preparation hours per response:  1.5
    Total response burden hours:  13,500
    FAR 52.245-17(h). Of the 75 contractors maintaining special tooling

[[Page 42545]]

in accordance with this clause, we estimate that 15 percent, or 
approximately 12 contractors submit excess listings and that it takes 
each contractor 2 hours to store, retrieve, prepare and submit the 
information.
    Respondents: 12
    Responses per respondent: 1
    Total annual responses:  12
    Preparation hours per response: 2
    Total response burden hours:  24
    If this rule is approved as a final rule, this coverage will be 
deleted and the burden hours will be slightly reduced.
    FAR 52.245-17(i)(4) requires contractors to submit two copies of 
all special tooling lists to the ACO, PCO, and ICP unless otherwise 
directed. We calculate the hours as follows:
    Respondents: 900
    Responses per respondent: 10
    Total annual responses:  9,000
    Preparation hours per response: .1
    Total response burden hours: 900
    Requester may obtain a copy of the information collection from the 
General Services Administration, FAR Secretariat (VR), Room 4035, 
Washington, DC 20405, telephone (202) 501-4755. Please cite OMB Control 
Number 9000-0075, Government Property, in all correspondence.

List of Subjects in 48 CFR Parts 45 and 52

    Government procurement.

    Dated: July 7, 2004.
Laura Auletta,
Director, Acquisition Policy Division.
    Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 45 and 
52 as set forth below:
    1. The authority citation for 48 CFR parts 45 and 52 is revised to 
read as follows:

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

PART 45--GOVERNMENT PROPERTY

    2. Amend section 45.106 by adding paragraph (h) to read as follows:


45.106  Government property clauses.

* * * * *
    (h)(1) Insert the clause at 52.245-9, Use and Charges--
    (i) In fixed-price or labor-hour solicitations and contracts under 
which the Government will furnish property for performance of the 
contract;
    (ii) In all cost-reimbursement and time-and-materials solicitations 
and contracts; and
    (iii) When a consolidated facilities contract or a facilities use 
contract is contemplated.
    (2) The contracting officer may modify the clause if an alternative 
rental methodology is used in accordance with 45.403.


45.302-6  [Amended]

    3. Amend section 45.302-6 by removing paragraph (c); and 
redesignating paragraphs (d) and (e) as paragraphs (c) and (d), 
respectively.
    4. Revise section 45.306-5 to read as follows:


45.306-5  Contract clause.

    Insert the clause at 52.245-17, Special Tooling, in solicitations 
and contracts when--
    (a) A fixed-price contract is contemplated;
    (b) The Government desires to reserve the right to obtain title in 
the special tooling acquired by the contractor; and
    (c) The Special Tooling is not a required deliverable.
    5. Revise section 45.403 to read as follows:


45.403  Rental--Use and Charges clause.

    (a) The contracting officer shall charge contractors rent for using 
Government production and research property, except as prescribed in 
45.404 and 45.405. Rent shall be computed in accordance with the clause 
at 52.245-9, Use and Charges. If the agency head determines it to be in 
the Government's interest, an alternative method for computing rent may 
be used.
    (b) The contracting officer shall ensure the collection of any rent 
due the Government from the contractor.


45.505-1  [Amended]

    6. Amend section 45.505-1 in the introductory text of paragraph (a) 
by adding ``or unless records are maintained as required by paragraph 
(h) of the clause at 52.245-17, Special Tooling,'' after the word 
``section,''


45.505-4  [Amended]

    7. Amend section 45.505-4 in paragraph (a) by adding ``or unless 
records are maintained as required by paragraph (h) of the clause at 
52.245-17, Special Tooling,'' after ``45.505-1(b),''

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    8. Amend section 52.245-2 by revising the date of the clause; 
removing the second sentence of paragraph (c)(2); and revising 
paragraph (c)(3) to read as follows:


52.245-2  Government Property (Fixed-Price Contracts).

* * * * *

GOVERNMENT PROPERTY (FIXED-PRICE CONTRACTS) (DATE)

* * * * *
    (c) * * *
    (3) Title to each item of facilities, and special test equipment 
and special tooling (other than that subject to the clause at 
52.245-17, Special Tooling), acquired by the Contractor for the 
Government under this contract shall pass to and vest in the 
Government when its use in performing this contract commences or 
when the Government has paid for it, whichever is earlier, whether 
or not title previously vested in the Government.
* * * * *
    9. Revise section 52.245-9 to read as follows:


52.245-9  Use and Charges.

    As prescribed in 45.106(h), insert the following clause in 
solicitations and contracts:

USE AND CHARGES (DATE)

    (a) Definitions. As used in this clause:
    Acquisition cost means the acquisition cost recorded in the 
Contractor's property control system or, in the absence of such 
record, the value attributed by the Government to a Government 
property item for purposes of determining a reasonable rental 
charge.
    Government property means all property owned by or leased to the 
Government or acquired by the Government under the terms of the 
contract. It includes both Government-furnished property and 
contractor-acquired property as defined in FAR 45.101.
    Real property means land and rights in land, ground 
improvements, utility distribution systems, and buildings and other 
structures. It does not include foundations and other work necessary 
for installing special tooling, special test equipment, or 
equipment.
    Rental period means the calendar period during which Government 
property is made available for nongovernmental purposes.
    Rental time means the number of hours, to the nearest whole 
hour, rented property is actually used for non-governmental 
purposes. It includes time to set up the property for such purposes, 
perform required maintenance, and restore the property to its 
condition prior to rental (less normal wear and tear).
    (b) Use of Government property. The Contractor may use the 
Government property without charge in the performance of--
    (1) Contracts with the Government that specifically authorize 
such use without charge;
    (2) Subcontracts of any tier under Government prime contracts if 
the Contracting Officer having cognizance of the prime contract--
    (i) Approves a subcontract specifically authorizing such use; or
    (ii) Otherwise authorizes such use in writing; and
    (3) Other work, if the Contracting Officer specifically 
authorizes in writing use without charge for such work.
    (c) Rental. If granted written permission by the Contracting 
Officer, or if it is specifically provided for in the Schedule, the 
Contractor may use the Government property (except material) for a 
rental fee for work other than that provided in paragraph (b) of 
this clause.

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 Authorizing such use of the Government property does not waive any 
rights of the Government to terminate the Contractor's right to use 
the Government property. The rental fee shall be determined in 
accordance with the following paragraphs.
    (d) General. (1) Rental requests shall be submitted to the 
administrative Contracting Officer, identify the property for which 
rental is requested, propose a rental period, and compute an 
estimated rental charge by using the Contractor's best estimate of 
rental time in the formulae described in paragraph (e) of this 
clause.
    (2) The Contractor shall not use Government property for 
nongovernmental purposes, including Independent Research and 
Development, until a rental charge for real property, or estimated 
rental charge for other property, is agreed upon. Rented property 
shall be used only on a non-interference basis.
    (e) Rental charge. (1) Real property and associated fixtures. 
(i) The Contractor shall obtain, at its expense, a property 
appraisal from an independent licensed, accredited, or certified 
appraiser that computes a monthly, daily, or hourly rental rate for 
comparable commercial property. The appraisal may be used to compute 
rentals under this clause throughout its effective period or, if an 
effective period is not stated in the appraisal, for one year 
following the date the appraisal was performed. The Contractor shall 
submit the appraisal to the Administrative Contracting Officer at 
least 30 days prior to the date the property is needed for 
nongovernmental use. Except as provided in paragraph (e)(1)(iii) of 
this clause, the administrative Contracting Officer shall use the 
appraisal rental rate to determine a reasonable rental charge.
    (ii) Rental charges shall be determined by multiplying the 
rental time by the appraisal rental rate expressed as a rate per 
hour. Monthly or daily appraisal rental rates shall be divided by 
720 or 24, respectively, to determine an hourly rental rate.
    (iii) When the administrative Contracting Officer has reason to 
believe the appraisal rental rate is not reasonable, he or she shall 
promptly notify the Contractor and provide his or her rationale. The 
parties may agree on an alternate means for computing a reasonable 
rental charge.
    (iv) The Contractor shall obtain, at its expense, additional 
property appraisals in the same manner as provided in paragraph 
(e)(1)(i) if the effective period has expired and the Contractor 
desires the continued use of property for non-governmental use. The 
Contractor may obtain additional appraisals within the effective 
period of the current appraisal if the market prices decrease 
substantially.
    (2) Other Government property. The Contractor may elect to 
compute the rental charge using the appraisal method described in 
paragraph (e)(1) of this clause subject to the constraints therein 
or the following formula in which rental time shall be expressed in 
increments of not less than one hour with portions of hours rounded 
to the next higher hour: The rental charge is calculated by 
multiplying 2 percent of the acquisition cost by the hours of rental 
time, and dividing by 720.
    (3) Alternative methodology. The Contractor may request 
consideration of an alternative basis for computing the rental 
charge if it considers the monthly rental rate or a time-based 
rental unreasonable or impractical.
    (f) Rental payments. (1) Rent is due at the time and place 
specified by the Contracting Officer. If a time is not specified, 
the rental is due 60 days following completion of the rental period. 
The Contractor shall compute the rental due, and furnish records or 
other supporting data in sufficient detail to permit the 
administrative Contracting Officer to verify the rental time and 
computation. Payment shall be made by check payable to the Treasurer 
of the United States and sent to the contract administration office 
identified in this contract, unless otherwise specified by the 
contracting officer.
    (2) Interest will be charged if payment is not made by the 
specified payment date or, in the absence of a specified date, the 
61st day following completion of the rental period. Interest will 
accrue at the ``Renegotiation Board Interest Rate'' (published in 
the Federal Register semiannually on or about January 1st and July 
1st) for the period in which the rent is due.
    (3) The Government's acceptance of any rental payment under this 
clause, in whole or in part, shall not be construed as a waiver or 
relinquishment of any rights it may have against the Contractor 
stemming from the Contractor's unauthorized use of Government 
property or any other failure to perform this contract according to 
its terms.
    (g) Use revocation. At any time during the rental period, the 
Government may revoke nongovernmental use authorization and require 
the Contractor, at the Contractor's expense, to return the property 
to the Government, restore the property to its pre-rental condition 
(less normal wear and tear), or both.
    (h) Unauthorized use. The unauthorized use of Government 
property can subject a person to fines, imprisonment, or both, under 
18 U.S.C. 641.
    (End of clause)


52.245-10  [Amended]

    10. Amend section 52.245-10 in the introductory paragraph by 
removing ``45.302-6(d)'' and adding ``45.302-6(c)'' in its place.


52.245-11  [Amended]

    11. Amend section 52.245-11 in the introductory paragraph by 
removing ``45.302-6(c)(1)'' and adding ``45.302-6(d)(1)'' in its place.
    12. Revise section 52.245-17 to read as follows:


52.245-17  Special Tooling.

    As prescribed in 45.306-5, insert the following clause:

SPECIAL TOOLING (DATE)

    (a) Definition. Special tooling means jigs, dies, fixtures, 
molds, patterns, taps, gauges, other equipment and manufacturing 
aids, all components of these items, and replacement of these items 
that are of such a specialized nature that without substantial 
modification or alteration their use is limited to the development 
or production of particular supplies or parts thereof or performing 
particular services. It does not include material, special test 
equipment, facilities (except foundations and similar improvements 
necessary for installing special tooling), general or special 
machine tools, or similar capital items.
    (b) Applicability. This clause applies to all special tooling 
manufactured or acquired under this contract other than that 
identified as a deliverable.
    (c) Special tooling, for the purpose of this clause, does not 
include any item acquired by the Contractor before the effective 
date of this contract, or replacement of such items, whether or not 
altered or adapted for use in performing this contract, or items 
specifically excluded by the Schedule of this contract.
    (d) Title. The Government has the right to take title to all 
special tooling subject to this clause until such time as that right 
to take title is relinquished by the Contracting Officer as provided 
for in paragraphs (k)(3) and (4) of this clause.
    (e) Use of special tooling. The Contractor agrees to use the 
special tooling only in performing this contract or as otherwise 
approved by the Contracting Officer.
    (f) Initial list of special tooling. If the Contracting Officer 
so requests, the Contractor shall furnish the Government an initial 
list of all special tooling acquired or manufactured by the 
Contractor for performing this contract. The list shall specify the 
nomenclature, tool number, related product part number (or service 
performed), retention determination (see paragraph (e) of this 
clause) original acquisition date and unit acquisition cost of the 
special tooling. The list shall separately identify special tooling 
that has become obsolete due to design or specification changes. The 
list shall be furnished within 60 days after delivery of the first 
production end item under this contract unless a later date is 
prescribed.
    (g) Contractor's offer to retain special tooling. The Contractor 
may indicate a desire to retain certain items of special tooling at 
the time it furnishes a list or notification pursuant to paragraph 
(f) or (j) of this clause. The Contractor shall furnish a written 
offer designating those items that it wishes to retain by 
specifically listing the items to include identifying the items as 
to the particular products, parts, or services for which the items 
were used or designed. The offer shall be made on one of the 
following bases:
    (1) An amount shall be offered for retention of the items free 
of any Government interest. This amount should ordinarily not be 
less than the current fair value of the items, considering among 
other things, the value of the items to the Contractor for use in 
future work.
    (2) Retention may be requested for a limited period of time and 
under terms as may be agreed to by the Government and the 
Contractor. This temporary retention is subject to final disposition 
pursuant to paragraph (k) of this clause.

[[Page 42547]]

    (h) Property control records. The Contractor shall maintain 
adequate property control records of all special tooling in 
accordance with its normal industrial practice. The records shall be 
made available for Government inspection at all reasonable times. To 
the extent practicable, the Contractor shall identify all special 
tooling subject to this clause with an appropriate stamp, serial 
number, tag, or other mark.
    (i) Maintenance. The Contractor shall take all reasonable steps 
necessary to maintain the identity and existing condition of usable 
items of special tooling from the date such items are no longer 
needed by the Contractor until final disposition under paragraph (k) 
of this clause. These maintenance requirements do not apply to those 
items designated by the Contracting Officer for disposal as scrap or 
identified as of no further interest to the Government under 
paragraph (k)(4) of this clause. The Contractor is not required to 
keep unneeded items of special tooling in place.
    (j) Final list of special tooling. No later than 60 days prior 
to the last scheduled delivery on this contract, the Contractor 
shall furnish the Contracting Officer a final list of special 
tooling with the same information as required for the initial list 
under paragraph (f) of this clause. The final list shall include all 
items, with an identification of the items not previously reported 
under paragraph (f) of this clause. Special Tooling that has become 
obsolete as a result of changes in design or specification that was 
not previously reported under paragraph (f) of this clause shall be 
separately identified. The Contracting Officer may extend this 
requirement until the completion of this contract.
    (k) Disposition instructions. The Contracting Officer shall 
provide the Contractor with disposition instructions for special 
tooling identified in a list submitted under paragraph (f) or (j) of 
this clause. The instructions shall be provided within 90 days of 
receipt of the list or notice, unless the period is extended by 
mutual agreement. The Contracting Officer may direct disposition by 
any of the methods listed in paragraphs (k)(1) through (4) of this 
clause, or a combination of such methods. Any failure of the 
Contracting Officer to provide specific instructions within the 90-
day period shall be construed as direction under paragraph (k)(3) of 
this clause.
    (1) The Contracting Officer shall give the Contractor a list 
specifying the products, parts, or services for which the Government 
may require special tooling and request the Contractor to transfer 
title (to the extent not previously transferred under any other 
clause of this contract) and deliver to the Government all usable 
items of special tooling that were designed for or used in the 
production or performance of such products, parts, or services and 
that were on hand when such production or performance ceased.
    (2) The Contracting Officer may accept or reject any offer made 
by the Contractor under paragraph (g) of this clause to retain items 
of special tooling or may request further negotiation of the offer. 
The Contractor agrees to enter into the negotiations in good faith. 
The net proceeds from the Contracting Officer's acceptance of the 
Contractor's retention offer shall either be deducted from amounts 
due the Contractor under this contract or shall be otherwise paid to 
the Government as directed by the Contracting Officer.
    (3) The Contracting Officer may direct the Contractor to sell, 
or dispose of as scrap, for the account of the Government, any 
special tooling reported by the Contractor under this clause. The 
net proceeds of all sales shall either be deducted from amounts due 
the Contractor under this contract or shall be otherwise paid to the 
Government as directed by the Contracting Officer. To the extent 
that the Contractor incurs any costs occasioned by compliance with 
such directions for which it is not otherwise compensated, the 
contract price shall be equitably adjusted in accordance with the 
Changes clause of this contract.
    (4) The Contracting Officer may furnish the Contractor with a 
statement disclaiming further Government interest or rights in any 
of the special tooling listed.
    (l) Storage or shipment. The Contractor shall promptly transfer 
to the Government title to the special tooling specified by the 
Contracting Officer and arrange for either the shipment or the 
storage of such tooling in accordance with the final disposition 
instructions in paragraph (k)(1) of this clause. Tooling to be 
shipped shall be properly packaged, packed, and marked in accordance 
with the directions of the Contracting Officer. Tooling to be stored 
shall be stored pursuant to a storage agreement between the 
Government and the Contractor, and as directed by the Contracting 
Officer. Tooling shipped or stored shall be accompanied by operation 
sheets or other appropriate data necessary to show the manufacturing 
operations or processes for which the items were used or designed. 
To the extent that the Contractor incurs costs for authorized 
storage or shipment under this paragraph and not otherwise 
compensated for, the contract price shall be equitably adjusted in 
accordance with the Changes clause of this contract.
    (m) Subcontract provisions. In order to perform this contract, 
the Contractor may place subcontracts (including purchase orders) 
involving the use of special tooling. If the full cost of the 
tooling is charged to those subcontracts, the Contractor agrees to 
include in the subcontracts appropriate provisions to obtain 
Government rights comparable to the rights of the Government under 
this clause (unless the Contractor and the Contracting Officer agree 
that such rights are not of substantial interest to the Government). 
The Contractor agrees to exercise such rights for the benefit of the 
Government as directed by the Contracting Officer.
    (End of clause)
[FR Doc. 04-15815 Filed 7-14-04; 8:45 am]
BILLING CODE 6820-EP-S