[Federal Register Volume 76, Number 76 (Wednesday, April 20, 2011)]
[Proposed Rules]
[Pages 22070-22074]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9515]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 4, 8, 17, 37, and 52

[FAR Case 2010-010; Docket 2010-0010, Sequence 1]
RIN 9000-AM06


Federal Acquisition Regulation; Service Contracts Reporting 
Requirements

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Proposed rule.

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SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal 
Acquisition Regulation (FAR) to implement section 743 of Division C of 
the Consolidated Appropriations Act, 2010. This proposed rule amends 
the FAR to require service contractors for executive agencies, except 
the Department of Defense (DoD), covered by the Federal Activities 
Inventory Reform (FAIR) Act of 1998, to submit information annually in 
support of agency-level inventories for service contracts.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat at one of the addresses shown below on or before 
June 20, 2011 to be considered in the formation of a final rule.

ADDRESSES: Submit comments in response to FAR Case 2010-010, by any of 
the following methods:
     Regulations.gov: http://www.regulations.gov.
    Submit comments via the Federal eRulemaking portal by inputting 
``FAR Case 2010-010'' under the heading ``Enter Keyword or ID and 
selecting ``Search''. Select the link ``Submit a Comment'' that 
corresponds with FAR Case 2010-010 at the ``Submit a Comment'' screen. 
Please include your name, company name (if any), and ``FAR Case 2010-
010'' on your attached document.
     Fax: 202-501-4067.
     Mail: General Services Administration, FAR Secretariat 
(MVCB), ATTN: Hada Flowers, 1275 First Street, NE., Washington, DC 
20405.
    Instructions: Please submit comments only and cite FAR Case 2010-
010, in all correspondence related to this case. All comments received 
will be posted without change to http://www.regulations.gov, including 
any personal and/or business confidential information provided.

FOR FURTHER INFORMATION CONTACT: Ms. Clare McFadden, Procurement 
Analyst, at (202) 501-0044 for clarification of content. Please cite 
FAR Case 2010-010. For information pertaining to status or publication 
schedules, contact the Regulatory Secretariat at (202) 501-4755.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 743 of Division C of the Consolidated Appropriations Act, 
2010 (Pub. L. 111-117) requires executive agencies covered by the 
Federal Activities Inventory Reform (FAIR) Act (Pub. L. 105-270), 
except DoD, to submit to the Office of Management and Budget (OMB) 
annually an inventory of activities performed by service contractors. 
DoD is exempt from this reporting requirement because 10 U.S.C. 2462 
and 10 U.S.C. 2330a(c) already requires DoD to develop an annual 
service contract inventory.
    House Report 111-366 notes, in connection with section 743, that, 
``(i)n the absence of complete and reliable information on the extent 
of their reliance on service contractors, Federal agencies are not 
well-equipped to determine whether they have the right balance of 
contractor and in-house resources needed to accomplish their missions. 
This section requires agencies to review the contents of the inventory 
and report on actions taken.''f
    Section 743 mandates that, for each service contract, the agency-
level inventory report must include the following information--
    (1) A description of the services purchased by the executive agency 
and

[[Page 22071]]

the role the services played in achieving objectives, regardless of 
whether such a purchase was made through a contract or task order;
    (2) The organizational component of the executive agency 
administering the contract, and the organizational component of the 
agency whose requirements are being met through contractor performance 
of the service;
    (3) The total dollar amount obligated for services under the 
contract and the funding source for the contract;
    (4) The total dollar amount invoiced for services under the 
contract;
    (5) The contract type and date of award;
    (6) The name of the contractor and place of performance;
    (7) The number and work location of contractor and subcontractor 
employees, expressed as full-time equivalents for direct labor, 
compensated under the contract;
    (8) Whether the contract is a personal services contract; and
    (9) Whether the contract was awarded on a noncompetitive basis, 
regardless of date of award.
    Additionally, the Office of Federal Procurement Policy's November 
5, 2010, guidance, entitled Service Contract Inventories (http://www.whitehouse.gov/omb/procurement_index_memo), requires agencies to 
include contract actions funded by that agency, including contract 
actions made on behalf of the agency by other agencies. Similarly, 
agencies should exclude contract actions that they have made on another 
agency's behalf with the other agency's funding. This guidance provided 
a framework to help agencies prepare service contract inventories for 
Fiscal Year (FY) 2010. To maximize the management benefits associated 
with a service contract inventory and ensure consistency across 
agencies, FY 2010 inventories followed the format provided in the 
guidance and included only the data elements identified in section 
743(a)(3) that are currently reported in the Federal Procurement Data 
System--Next Generation (FPDS-NG). However, certain data elements, 
namely the total amount invoiced for services and number of direct 
labor hours expended on services performed during the previous 
Government fiscal year, which will be used to calculate the number of 
contractor manpower full-time equivalents, must be collected from 
service contractors.
    The service contractor inventory requirements in section 743 create 
significant management responsibilities to support the appropriate 
rebalancing of work performed by Federal employees and contractors. To 
implement this requirement in the FAR, OMB directed DoD, GSA, and NASA 
to use a phased-in approach similar to that proposed in the President's 
Budget for FY 2011. A phased-in approach will help agencies more 
effectively manage the challenges associated with launching and 
maintaining an inventory.
    In accordance with Section 743, this rule proposes to amend the FAR 
to create a new FAR subpart 4.16, entitled Service Contracts Inventory, 
to address responsibilities for collection, management, and reporting 
of this information, and a new clause, 52.204-XX, Service Contract 
Reporting Requirements, to incorporate into covered solicitations and 
contracts. An Alternate clause will be used for orders placed on 
indefinite-delivery contracts.
    Agencies placing orders on these existing contracts after the 
effective date of a resulting final rule will be required to report 
this information if the order meets the thresholds established in FAR 
4.1603 (e.g., at or above the simplified acquisition threshold (SAT) 
for cost-reimbursement, time-and-materials, and labor-hour contracts, 
and fixed-price contracts at or above $5 million in FY 2011 and phased-
in thresholds thereafter).
    Under this proposed rule, contractors must submit the following 
four data elements for each covered contract or order for a given year 
by October 31st annually:
    (1) Contract number and, as applicable, task order number.
    (2) The total dollar amount invoiced for services performed during 
the previous fiscal year under the contract.
    (3) The number of contractor direct labor hours expended on the 
services performed during the previous fiscal year.
    (4) Data reported by subcontractors.
    Subcontractor information is also required under Section 743. To 
implement this requirement in the FAR, in a manner that is least 
burdensome, OMB directed collection of this information from first-tier 
subcontractors (similar to the subcontractor reporting requirement in 
FAR subpart 4.14, Reporting Executive Compensation and First-Tier 
Subcontract Awards). Prime contractors would be required to obtain from 
each first-tier subcontractor performing under a covered contract the 
following information by October 15th annually:
    (1) Subcontract number (including subcontractor name, and, if 
available, Data Universal Numbering System (DUNS) number associated 
with the subcontract number).
    (2) Number of first-tier subcontractor direct-labor hours expended 
on services performed during the previous Government fiscal year.
    The proposed reporting requirement applies only to solicitations, 
contracts, and orders for services, to first-tier subcontracts at or 
above the established thresholds.

II. Executive Orders 13563 and 12866

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This is a significant regulatory action and, therefore, 
was 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.

III. Regulatory Flexibility Act

    The change may 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 this new requirement 
does impose some additional requirements on small businesses that 
provide services to Executive agencies, other than DoD.
    An Initial Regulatory Flexibility Analysis (IRFA) has been 
prepared. The analysis is summarized as follows:

    The statute requires agencies covered by the FAIR Act, except 
DoD, to submit annual agency inventories of their service contracts. 
The inventory must address nine data items for each service contract 
(see ``I. Background''). DoD, GSA, and NASA attempted to minimize 
the information-collection requirement for contractors by requiring 
agencies to obtain as much of the data as possible from existing 
sources such as the Federal Procurement Data System (FPDS). For each 
service contract or order, contractors would be expected to report 
annually--
    (1) Contract number and, as applicable, task order number;
    (2) The total dollar amount invoiced for services performed 
during the previous Government fiscal year under the contract;
    (3) The number of contractor direct labor hours expended on the 
services performed during the previous Government fiscal year; and
    (4) Data reported by first-tier subcontractors.

[[Page 22072]]

    Consistent with the thresholds for prime contracts, first-tier 
subcontractors with subcontracts valued at or above the thresholds 
established for new contracts (e.g., $5 million for new fixed-price 
contracts in FY 2011 and at or above the simplified acquisition 
threshold for cost-reimbursement, time-and-materials, and labor-hour 
contracts) would be expected to report the following data elements 
to the prime contractor by October 15th annually:
    (1) Subcontract number (including the subcontractor name and if 
available, the DUNS number).
    (2) Number of first-tier subcontractor direct labor hours 
expended on services performed during the previous Government fiscal 
year.

    To further minimize the impact, OMB elected to implement the 
contractor reporting requirements over a period of four years beginning 
with larger dollar obligations for new fixed-price contracts (i.e., $5 
million for FY 2011) that goes down to a $500,000 contract reporting 
threshold for FY 2014. A lower threshold was selected for cost-
reimbursement, time-and-materials, and labor-hour contracts (i.e., at 
or above the SAT) because contractors already track the required 
information to invoice the Government.
    The reporting requirement would apply to Government contractors, 
other than DoD contractors, that supply services to executive agencies 
during a Government fiscal year (beginning in FY 2011) and over the 
specified reporting thresholds.
    Each contractor would be required to report annually on the 
services provided during the previous Government fiscal year. The 
information would be input to a new Service Contract Reporting Portal 
(currently under development). This information will be collected 
through this portal, and no hard-copy reporting is required. When 
providing a proper invoice to the Government for cost-reimbursement, 
time-and-materials, and labor-hour contracts, the information on the 
number of direct labor hours worked is already compiled by contractors, 
so the information collected should be minimal for these types of 
contracts. The direct costs to small business firms to comply with this 
rule are primarily for data collection and input associated with the 
single annual report.
    To minimize the burden on small businesses, the following 
alternatives were considered and included in the proposed FAR rule:
     Minimizing the inventory data elements collected by using 
existing systems, such as FPDS.
     Minimizing the reporting to once a year.
     Enabling electronic reporting by the contractor into the 
new portal.
     Requiring contractors to provide only the number of direct 
labor hours and developing the system to automatically generate the 
number of full-time equivalents.
     Limiting the reporting requirement to first-tier 
subcontractors for services in lieu of all subcontractors.
     Establishing a phased-in approach based on contract type 
and estimated total dollar amount, from 2011 to 2014 based on 
thresholds, to minimize the collection of information.
    The Regulatory Secretariat will be submitting a copy of the Initial 
Regulatory Flexibility Analysis (IRFA) to the Chief Counsel for 
Advocacy of the Small Business Administration. A copy of the IRFA may 
be obtained from the Regulatory Secretariat. The Councils invite 
comments from small business concerns and other interested parties on 
the expected impact of this rule on small entities.
    DoD, GSA, and NASA will also consider comments from small entities 
concerning the affected regulations in subparts affected by this rule 
in accordance with 5 U.S.C. 610. Comments must be submitted separately 
and should cite 5 U.S.C. 601, et seq. (FAR Case 2010-010) in all 
correspondence.

IV. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. Chapter 35) applies because 
the proposed rule contains information collection requirements. 
Accordingly, the Regulatory Secretariat has submitted a request for 
approval of a new information collection requirement: 9000-0179, 
Service Contractor Reporting Requirements, FAR Case 2010-010, Proposed 
Rule, to the Office of Management and Budget.
    Annual Reporting Burden:
    Public reporting burden for this collection of information is 
estimated to average 2 hours per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. Because this is a new information collection 
requirement, historical data is not available. Further, the ceiling 
amount for certain service contracts to include the reporting 
requirement will be phased in over several years. Data from FY 2009 was 
used to determine the burden, with the most recent year for which data 
is available used as a baseline for the number of affected service 
contracts. DOD awards were excluded.
    If this reporting requirement had been in place during FY 2009, it 
would have covered 17,120 fixed-price service contracts over $5 million 
and 6,725 cost-reimbursement, time-and-materials, and labor-hour 
service contracts above the simplified acquisition threshold. 
Therefore, the total number of contracts on which reports would have 
been submitted is 23,845. Only one report is required for each contract 
annually, and we estimate that it will take approximately 2 hours to 
prepare and submit the report. The annual reporting burden is estimated 
as follows:

Respondents....................................................   23,845
Responses/respondent...........................................      x 1
                                                                --------
Total annual Responses.........................................   23,845
Preparation hours per response.................................      x 2
                                                                --------
Total response burden hours....................................   47,690
 

List of Subjects in 48 CFR Parts 4, 8, 17, 37, and 52

    Government procurement.

    Dated: April 14, 2011.
Millisa Gary,
Acting Director, Office of Governmentwide Acquisition Policy.

    Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 4, 8, 
17, 37, and 52 as set forth below:
    1. The authority citation for 48 CFR parts 4, 8, 17, 37, and 52 
continues 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 4--ADMINISTRATIVE MATTERS

    2. Add subpart 4.16 to read as follows:
Subpart 4.16--Service Contracts Inventory
Sec.
4.1600 Scope of subpart.
4.1601 Definitions.
4.1602 Applicability.
4.1603 Contractor reporting requirements.
4.1604 Contracting officer responsibilities.
4.1605 Contract clause.

Subpart 4.16--Service Contracts Inventory


4.1600  Scope of subpart.

    This subpart implements section 743 of Division C of the 
Consolidated Appropriations Act, 2010, (Pub. L. 111-117), which 
requires agencies to report annually to the Office of Management and 
Budget (OMB) on activities performed by service contractors. Section 
743 applies to executive agencies, other than the Department of Defense 
(DoD), covered by the Federal Activities Inventory Reform Act (Pub. L. 
105-270) (FAIR Act). The information reported in the inventory will be 
publicly accessible.

[[Page 22073]]

4.1601  Definitions.

    FAIR Act agencies, as used in this subpart, means the agencies 
required under the FAIR Act to submit inventories annually of the 
activities performed by Government personnel.
    First-tier subcontract means a subcontract awarded directly by a 
contractor to furnish supplies or services (including construction) for 
performance of a prime contract, but excludes supplier agreements with 
vendors, such as long-term arrangements for materials or supplies that 
would normally be applied to a contractor's general and administrative 
expenses or indirect cost.
    Service contract is defined in 37.101.


4.1602  Applicability.

    (a) This subpart applies to--
    (1) All FAIR Act agencies, except DoD;
    (2) Solicitations, contracts, and orders for services that meet or 
exceed the thresholds at 4.1603; and
    (3) Contractors and first-tier subcontractors.
    (b) Procedures for compiling and submitting agency service contract 
inventories are governed by section 743(a)(3) of Division C of Pub. L. 
111-117 and Office of Federal Procurement Policy (OFPP) guidance. The 
guidance is available at the following Web site: http://www.whitehouse.gov/omb/procurement-service-contract-inventories.
    (c) This subpart addresses requirements for obtaining information 
from, and reporting by, agency service contractors.


4.1603  Contractor reporting requirements.

    (a) Thresholds. (1) Except as exempted by OFPP guidance, service 
contractor reporting shall be required for contracts and first-tier 
subcontracts based on type of contract and estimated total value. For 
indefinite-delivery contracts, reporting shall be determined based on 
the type and estimated total value of the orders issued under the 
contract. Indefinite-delivery contracts include, but are not limited 
to, contracts such as indefinite-delivery indefinite-quantity (IDIQ) 
contracts, Federal Supply Schedule contracts (FSSs), Governmentwide 
acquisition contracts (GWACs), and multi-agency contracts.
    (2) Reporting is required for contracts and orders according to the 
following thresholds:
    (i) All cost-reimbursement, time-and-materials, and labor-hour 
service contracts and orders with an estimated total value above the 
simplified acquisition threshold.
    (ii) All fixed-price contracts awarded or orders issued according 
to the following thresholds:
    (A) Awarded or issued in Fiscal Year (FY) 2011, on or after [DATE] 
with an estimated total value of $5 million or greater.
    (B) Awarded or issued in FY 2012, with an estimated total value of 
$2.5 million or greater.
    (C) Awarded or issued in FY 2013, with an estimated total value of 
$1 million or greater.
    (D) Awarded or issued in FY 2014 and subsequent years, with an 
estimated total value of $500,000 or greater.
    (3) For all first-tier subcontractors performing work under a 
covered contract, subcontract reporting is required based on the 
thresholds as prescribed in paragraphs (a)(2)(i) and (ii) of this 
section.
    (b) Agency reporting responsibilities. (1) Agencies shall ensure 
that contractors comply with the reporting requirements of 52.204-XX, 
Service Contract Reporting Requirements.
    (2) Agencies are required to compile annually an inventory of 
service contracts performed for, or on behalf of, the agency during the 
prior fiscal year in order to determine the extent of the agency's 
reliance on service contractors. Agencies shall submit a service 
contract inventory to OMB by December 30 annually. Then, each agency 
must post the inventory on its Web site and publish a Federal Register 
Notice of Availability by January 30 annually.
    (3) Most of the required information is already collected in the 
Federal Procurement Data System (FPDS). Information not collected in 
FPDS will be provided by the contractor, as specified in 52.204-XX, 
Service Contract Reporting Requirements. Contracts reported using the 
generic DUNS number allowed at 4.605(b)(2) will interfere with the 
contractor's ability to comply with this reporting requirement, because 
the data will not pre-populate from FPDS.


4.1604  Contracting officer responsibilities.

    (a) The contracting officer shall ensure that the contract 
reporting clause is included in solicitations, contracts, and orders as 
prescribed in 4.1605 and that the contractor complies with the 
reporting requirements in 52.204-XX, Service Contract Reporting 
Requirements. For indefinite-delivery contracts, the contracting 
officer who awarded the contract shall ensure that 52.204-XX, Service 
Contract Reporting Requirements, is included in the contract. The 
contracting officer at the order level shall verify the clause's 
inclusion in the contract and ensure that each contractor awarded an 
order against the contract is submitting the report in a timely manner.
    (b) The contracting officer shall make the contractor's failure to 
comply with the reporting requirements a part of the contractor's 
performance information under subpart 42.15.


4.1605  Contract clause.

    The contracting officer shall insert the clause at 52.204-XX, 
Service Contract Reporting Requirements, in solicitations and contracts 
for services that meet or exceed the thresholds at 4.1603. The 
contracting officer shall use the clause with its Alternate I in 
indefinite-delivery contracts where one or more orders issued 
thereunder are expected to each meet or exceed the thresholds at 
4.1603. This clause is not required in classified solicitations, 
contracts, or orders.

PART 8--REQUIRED SOURCES OF SUPPLIES AND SERVICES

    3. Amend section 8.404 by adding paragraph (f) to read as follows:


8.404  Use of Federal Supply Schedules.

* * * * *
    (f) Ensure that service contractor reporting requirements will be 
met in accordance with subpart 4.16, Service Contracts Inventory.

PART 17--SPECIAL CONTRACTING METHODS

    4. Revise section 17.504 to read as follows:


17.504  Reporting requirements.

    (a) The senior procurement executive for each executive agency 
shall submit to the Director of OMB an annual report on interagency 
acquisitions, as directed by OMB.
    (b) The contracting officer shall ensure that service contractor 
reporting requirements will be met in accordance with subpart 4.16, 
Service Contracts Inventory.

PART 37--SERVICE CONTRACTING

    5. Amend 37.103 by adding paragraph (e) to read as follows:


37.103  Contracting officer responsibility.

* * * * *
    (e) Ensure that service contractor reporting requirements will be 
met in accordance with subpart 4.16, Service Contracts Inventory.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    6. Add section 52.204-XX to read as follows:

[[Page 22074]]

52.204-XX  Service Contract Reporting Requirements.

    As prescribed in 4.1605, insert the following clause:

Service Contract Reporting Requirements (Date)

    (a) The Contractor shall report, in accordance with paragraph 
(b) of this section, annually by October 31st for services performed 
under this contract during the preceding Government fiscal year 
(October 1-September 30).
    (b) The Contractor shall report the following information:
    (1) Contract number and, as applicable, order number.
    (2) The total dollar amount invoiced for services performed 
during the previous Government fiscal year under the contract.
    (3) The number of Contractor direct labor hours expended on the 
services performed during the previous Government fiscal year.
    (4) Data reported by subcontractors under paragraph (d) of this 
clause.
    (c) The information required in paragraph (b) of this section 
shall be submitted to the online Service Contract Reporting Portal 
and will be publicly available at http://www.acquisition.gov.
    (d)(1) The Contractor shall require each first-tier 
subcontractor performing under this contract, with contracts valued 
at or above the thresholds set forth in 4.1603(a)(2), to provide the 
following detailed information to the Contractor by October 15th:
    (i) Subcontractor DUNS number, or if DUNS number is unavailable, 
subcontractor name.
    (ii) The number of first-tier subcontractor direct-labor hours 
expended on the services performed during the previous Government 
fiscal year.
    (2) The Contractor shall advise the subcontractor that the 
information will be made available to the public as required by 
section 743 of Division C of the Consolidated Appropriations Act, 
2010.


(End of clause)

    Alternate I (DATE). As prescribed in 4.1605, substitute the 
following paragraphs (a), (b), and (d) for paragraphs (a), (b), and 
(d) of the basic clause.
    (a) The Contractor shall report, in accordance with paragraph 
(b) of this Alternate I, by October 31st annually for services 
performed during the preceding Government fiscal year (October 1-
September 30) under this contract for orders that exceed the 
thresholds established in 4.1603(a)(2).
    (b) The Contractor shall report the following information:
    (1) Contract number and, as applicable, order number.
    (2) The total dollar amount invoiced for services performed 
during the previous Government fiscal year under the order.
    (3) The number of Contractor direct labor hours expended on the 
services performed during the previous Government fiscal year.
    (4) Data reported by subcontractors under paragraph (d) of this 
clause.
    (d)(1) The Contractor shall require each first-tier 
subcontractor with contracts valued at or above the thresholds set 
forth in 4.1603(a)(2) performing services under this contract to 
provide the following detailed information to the Contractor by 
October 15th:
    (i) Subcontractor DUNS number, or if DUNS number is unavailable, 
subcontract name.
    (ii) The number of first-tier subcontractor direct-labor hours 
expended on the services performed during the previous Government 
fiscal year.
    (2) The Contractor shall advise the subcontractor that the 
information will be made available to the public as required by 
section 743 of Division C of the Consolidated Appropriations Act, 
2010.

[FR Doc. 2011-9515 Filed 4-19-11; 8:45 am]
BILLING CODE 6820-EP-P