40460 Federal Register / Vol. 74, No. 153 / Tuesday, August 11, 2009 / Rules and Regulations 

PART 5—PUBLICIZING CONTRACT 

ACTIONS 

■ 2. Amend section 5.102 by— 

■ a. Revising paragraph (a)(4) and the 

introductory text of paragraph (a)(5); 

■ b. Removing paragraph (a)(5)(iii); and 

■ c. Redesignating paragraph (a)(5)(iv) 

as (a)(5)(iii). 

■ The revised text reads as follows: 

5.102 Availability of solicitations. 

(a) * * * 

(4) When an agency determines that a 

solicitation contains information that 

requires additional controls to monitor 

access and distribution (e.g., technical 

data, specifications, maps, building 

designs, schedules, etc.), the 

information shall be made available 

through the enhanced controls of the 

GPE, unless an exception in paragraph 

(a)(5) of this section applies. The GPE 

meets the synopsis and advertising 

requirements of this part. 

(5) The contracting officer need not 

make a solicitation available through the 

GPE as required in paragraph (a)(4) of 

this section, when— 

* * * * * 

5.207 [Amended] 

■ 3. Amend section 5.207 by removing 

from paragraph (c)(18) ‘‘FedTeDS 

(https://www.fedteds.gov)’’ and adding 

‘‘http://www.fedbizopps.gov’’ in its 

place. 

PART 7—ACQUISITION PLANNING 

7.105 [Amended] 

■ 4. Amend section 7.105 by removing 

from paragraph (b)(15) ‘‘Federal 

Technical Data Solution (FedTeDS)’’ 

and adding ‘‘enhanced controls of the 

GPE at http://www.fedbizopps.gov’’ in 

its place. 

[FR Doc. E9–19162 Filed 8–10–09; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 22 and 52 

[FAC 2005–36; FAR Case 2007–021; Item 

II; Docket 2009–0004; Sequence 2] 

RIN 9000–AL14 

Federal Acquisition Regulation; FAR 

Case 2007–021, Fair Labor Standards 

Act and Service Contract Act Price 

Adjustment Clauses 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) have agreed on a final rule 

amending the Federal Acquisition 

Regulation (FAR) to specifically require 

the incorporation of FAR clauses 

52.222–43, Fair Labor Standards Act 

and Service Contract Act—Price 

Adjustment (Multiple Year and Option 

Contracts) and 52.222–44, Fair Labor 

Standards Act and Service Contract 

Act—Price Adjustment, in time-andmaterials and labor-hour service 

contracts that are subject to the Service 

Contract Act. No comments were 

received in response to the proposed 

rule. 

DATES: Effective Date: September 10, 

2009. 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact Ms. 

Meredith Murphy, Procurement 

Analyst, at (202) 208–6925. For 

information pertaining to status or 

publication schedules, contact the 

Regulatory Secretariat at (202) 501– 

4755. Please cite FAC 2005–36, FAR 

case 2007–021. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This final rule amends the FAR to 

revise the clause prescriptions at FAR 

22.1006(c)(1) and (2) to specifically 

require that time-and-materials and 

labor-hour service contracts subject to 

the Service Contract Act contain the 

appropriate price adjustment clauses set 

forth at FAR 52.222–43 and 52.222–44. 

DoD, GSA, and NASA published a 

proposed rule in the Federal Register at 

74 FR 872 on January 9, 2009. 

Despite the fact that the previous 

prescriptions did not require use of the 

clauses in time-and-materials or laborhour contracts, there was actually broad 

usage of the clause(s) in such contracts. 

This change will achieve consistency 

throughout the Government acquisition 

community and resolve potential 

inequities where the clauses have not 

been applied. It will achieve an 

equitable result for contractors and will 

also allow the Government to avoid use 

of other means of adjusting contract unit 

price labor rates which may be more 

costly to the Government. Other means 

of adjusting contract labor rates, such as 

allowing for wage/benefit escalation, 

equitable adjustment or economic price 

adjustment, would likely include profit, 

overhead, and general and 

administrative expenses. The FAR 

clauses at 52.222–43 and 52.222–44 

explicitly exclude these additional 

costs. 

The clause prescriptions at FAR 

22.1006(c)(1) and (c)(2) currently 

require that Service Contract Act wage 

determination updates be applied to 

contracts subject to the FAR clause at 

52.222–41, Service Contract Act of 1965 

but, as required by FAR clause 52.222– 

41, minimum monetary wages and 

fringe benefits to be paid to service 

employees under the contract may be 

subject to adjustment, under wage 

determinations issued by the 

Department of Labor. While there may 

be other means permitted to adjust fixed 

labor rates on time-and-materials or 

labor-hour contracts, those other means 

do not achieve the consistent results 

that use of the Service Contract Act 

price adjustment clause(s) will achieve. 

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 Department of Defense, the 

General Services Administration, and 

the National Aeronautics and Space 

Administration certify 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 it 

merely clarifies the existing 

prescriptions relating to service 

contracts. FAR clause 52.222–41 

requires contractors to comply with 

wage determinations of the Department 

of Labor and may require adjustment to 

wage rates during the term of the 

contract. Most contracts that include 


srobinson on DSKHWCL6B1PROD with RULES5
Federal Register / Vol. 74, No. 153 / Tuesday, August 11, 2009 / Rules and Regulations 40461 

this clause therefore provide some 

mechanism for dealing with the 

potential required price adjustment. The 

Councils have been advised that use of 

these clauses for time-and-materials and 

labor-hour service contracts is already 

widespread. Uniform use of the 

appropriate clause will ensure 

consistency in the adjustment method 

for any required increase in wage rate, 

but should not have a significant cost 

impact. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the changes to the 

FAR do not impose information 

collection requirements that require the 

approval of the Office of Management 

and Budget under 44 U.S.C. Chapter 35, 

et seq. 

List of Subjects in 48 CFR Parts 22 and 

52 

Government procurement. 

Dated: August 4, 2009. 

Al Matera, 

Director, Office of Acquisition Policy. 

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR parts 22 and 52 as set 

forth below: 

■ 1. The authority citation for 48 CFR 

parts 22 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 22—APPLICATION OF LABOR 

LAWS TO GOVERNMENT 

ACQUISITIONS 

22.1006 [Amended] 

■ 2. Amend section 22.1006 by 

removing from paragraphs (c)(1) and 

(c)(2) ‘‘fixed-price’’ and adding ‘‘fixedprice, time-and-materials, or laborhour’’ in its place. 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

52.212–5 [Amended] 

■ 3. Amend section 52.212–5 by 

removing from the date of the clause 

‘‘(June 2009)’’ and adding ‘‘(Sep 2009)’’ 

in its place; by removing from paragraph 

(c)(3) ‘‘(Nov 2006)’’ and adding ‘‘(Sep 

2009)’’ in its place; and by removing 

from paragraph (c)(4) ‘‘(Feb 2002)’’ and 

adding ‘‘(Sep 2009)’’ in its place. 

■ 4. Amend section 52.222–43 by 

revising the date of the clause, 

introductory text in paragraph (d), and 

the third and fourth sentences of 

paragraph (f) to read as follows: 

52.222–43 Fair Labor Standards Act and 

Service Contract Act—Price Adjustment 

(Multiple Year and Option Contracts). 

* * * * * 

FAIR LABOR STANDARDS ACT AND 

SERVICE CONTRACT ACT—PRICE 

ADJUSTMENT (MULTIPLE YEAR AND 

OPTION CONTRACTS) (Sep 2009) 

* * * * * 

(d) The contract price, contract unit 

price labor rates, or fixed hourly labor 

rates will be adjusted to reflect the 

Contractor’s actual increase or decrease 

in applicable wages and fringe benefits 

to the extent that the increase is made 

to comply with or the decrease is 

voluntarily made by the Contractor as a 

result of: 

* * * * * 

(f) * * * The notice shall contain a 

statement of the amount claimed and 

the change in fixed hourly rates (if this 

is a time-and-materials or labor-hour 

contract), and any relevant supporting 

data, including payroll records, that the 

Contracting Officer may reasonably 

require. Upon agreement of the parties, 

the contract price, contract unit price 

labor rates, or fixed hourly rates shall be 

modified in writing. * * * 

* * * * * 

■ 5. Amend section 52.222–44 by 

revising the date of the clause, 

introductory text of paragraph (c), and 

the third and fourth sentences of 

paragraph (e) to read as follows: 

52.222–44 Fair Labor Standards Act and 

Service Contract Act—Price Adjustment. 

* * * * * 

FAIR LABOR STANDARDS ACT AND 

SERVICE CONTRACT ACT—PRICE 

ADJUSTMENT (Sep 2009) 

* * * * * 

(c) The contract price, contract unit 

price labor rates, or fixed hourly labor 

rates will be adjusted to reflect increases 

or decreases by the Contractor in wages 

and fringe benefits to the extent that 

these increases or decreases are made to 

comply with— 

* * * * * 

(e) * * * The notice shall contain a 

statement of the amount and the change 

in fixed hourly rates (if this is a timeand-materials or labor-hour contract) 

claimed and any relevant supporting 

data that the Contracting Officer may 

reasonably require. Upon agreement of 

the parties, the contract price, contract 

unit price labor rates, or fixed hourly 

rates shall be modified in writing. * * 

* 

* * * * * 

[FR Doc. E9–19163 Filed 8–10–09; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 22, 25, and 52 

[FAC 2005–36; FAR Case 2009–014; Item 

III; Docket 2009–0027, Sequence 1] 

RIN 9000–AL34 

Federal Acquisition Regulation; FAR 

Case 2009–014, New Designated 

Country—Taiwan 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) have agreed on an interim 

rule amending the Federal Acquisition 

Regulation (FAR) to add Taiwan (known 

in the World Trade Organization as ‘‘the 

Separate Customs Territory of Taiwan, 

Penghu, Kinmen and Matsu (Chinese 

Taipei))’’ as a designated country, due to 

the accession of Taiwan to membership 

in the World Trade Organization 

Agreement on Government 

Procurement. 

DATES: Effective Date: August 11, 2009. 

Comment Date: Interested parties 

should submit written comments to the 

Regulatory Secretariat on or before 

October 13, 2009 to be considered in the 

formulation of a final rule. 

ADDRESSES: Submit comments 

identified by FAC 2005–36, FAR case 

2009–014, by any of the following 

methods: 

•Regulations.gov: http:// 

www.regulations.gov. 

Submit comments via the Federal 

eRulemaking portal by inputting ‘‘FAR 

Case 2009–014’’ under the heading 

‘‘Comment or Submission’’. Select the 

link ‘‘Send a Comment or Submission’’ 

that corresponds with FAR Case 2009– 

014. Follow the instructions provided to 

complete the ‘‘Public Comment and 

Submission Form’’. Please include your 

name, company name (if any), and 

‘‘FAR Case 2009–014’’ on your attached 

document. 

• Fax: 202–501–4067. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(VPR), 1800 F Street, NW, Room 4041, 

ATTN: Hada Flowers, Washington, DC 

20405. 


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