864 Federal Register / Vol. 74, No. 6 / Friday, January 9, 2009 / Rules and Regulations 

(b) A copy of GSA Form 1678 will be 

forwarded to the Contractor with the 

contract. Additional copies of the form, 

if needed, may be reproduced by the 

Contractor. 

(End of clause) 

[FR Doc. E9–216 Filed 1–8–09; 8:45 am] 

BILLING CODE 6820–61–S 

GENERAL SERVICES 

ADMINISTRATION 

48 CFR Parts 543 and 552 

[GSAR Amendment 2005–04; GSAR Case 

2008–G513 (Change 25); Docket 2009–0012; 

Sequence 2] 

RIN 3090–AI83 

General Services Administration 

Acquisition Regulation; GSAR Case 

2008–G513; Rewrite of GSAR Part 543, 

Contract Modifications 

AGENCIES: General Services 

Administration (GSA), Office of the 

Chief Acquisition Officer. 

ACTION: Final rule. 

SUMMARY: The General Services 

Administration (GSA) is amending the 

GSA Acquisition Regulation (GSAR) to 

revise the language that provides 

requirements for contract modifications. 

DATES: Effective Date: January 9, 2009. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Jeritta Parnell at (202) 501–4082, for 

clarification of content. For information 

pertaining to the status or publication 

schedules, contact the Regulatory 

Secretariat (VPR), Room 4041, GS 

Building, Washington, DC 20405, (202) 

501–4755. Please cite Amendment 

2005–04, GSAR case 2008–G513 

(Change 25). 

SUPPLEMENTARY INFORMATION: 

A. Background 

The GSA is amending the GSAR to 

revise GSAR 543.205, Contract clauses, 

and associated clauses in GSAR 

552.243. The information in GSAR 

543.205, Contract clauses, is revised to 

remove 543.205(a)(1) and 543.205(b) 

and be re-numbered accordingly. The 

information in 543.205(a)(1) is deleted. 

This clause prescription is no longer 

necessary. The information in 

543.205(b) is relocated to part 538. The 

prescription for the clause at 552.243– 

71, Equitable Adjustment, is revised to 

include the clause title for FAR 52.243– 

4, Changes. The clause at 552.243–70, 

Pricing of Adjustments, is deleted. 

Information formerly contained in this 

clause is now contained in the revised 

clause at 552.243–71, Equitable 

Adjustments. The clause at 552.243–71, 

Equitable Adjustments, is revised to 

clarify costs, overhead, profit, and 

proposal preparation costs. The clause 

at 552.243–72, Modifications, (Multiple 

Award Schedule) is relocated to GSAR 

part 538. 

The GSA published a proposed rule 

with request for comments in the 

Federal Register at 73 FR 35614 on June 

24, 2008. There were four public 

comments from two respondents. One 

respondent recommended adding the 

phrase ‘‘impacted by the change’’ to 

paragraph (e) of the clause at 552.243– 

71 to limit the equitable adjustment to 

only the work impacted by the change. 

The GSA agrees and the language was 

revised to include this recommendation. 

The second respondent made three 

suggestions regarding internal GSA 

procedures. These suggestions are 

outside the scope of the GSAR case as 

published. Additional editorial 

corrections were made in paragraphs 

(b), (d), and (j)(2)of the clause at 

552.243–71. 

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 General Services Administration 

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 updates, clarifies, and 

reorganizes existing language. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the changes to the 

GSAR do not impose recordkeeping or 

information collection requirements, or 

otherwise collect information from 

offerors, contractors, or members of the 

public that require approval of the 

Office of Management and Budget under 

44 U.S.C.3501, et seq. 

List of Subjects in 48 CFR Parts 543 and 

552 

Government procurement. 

Dated: December 8, 2008. 

David A. Drabkin, 

Senior Procurement Executive, Office of the 

Chief Acquisition Officer, General Services 

Administration. 

■ Therefore, GSA amends 48 CFR parts 

543 and 552 as set forth below: 

■ 1. The authority citation for 48 CFR 

parts 543 and 552 continues to read as 

follows: 

Authority: 40 U.S.C. 121(c). 

PART 543—CONTRACT 

MODIFICATONS 

■ 2. Revise section 543.205 to read as 

follows: 

543.205 Contract clauses. 

The contracting officer shall insert 

552.243–71, Equitable Adjustments, in 

solicitations and contracts containing 

FAR 52.243–4, Changes. 

PART 552—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

552.243–70 [Removed] 

■ 3. Remove section 552.243–70. 

■ 4. Revise section 552.243–71 to read 

as follows: 

552.243–71 Equitable Adjustments. 

As prescribed in 543.205, insert the 

following clause: 

Equitable Adjustments 

(JAN 2009) 

(a) This clause governs the 

determination of equitable adjustments 

to which the Contractor may be entitled 

under the ‘‘Changes’’ clause prescribed 

by FAR 52.243–4, the ‘‘Differing Site 

Conditions’’ clause prescribed by FAR 

52.236–2, and any other provision of 

this contract allowing entitlement to an 

equitable adjustment. This clause does 

not govern determination of the 

Contractor’s relief allowable under the 

‘‘Suspension of Work’’ clause prescribed 

by FAR 52.242–14. 

(b) At the written request of the 

Contracting Officer, the Contractor shall 

submit a proposal, in accordance with 

the requirements set forth herein, for an 

equitable adjustment to the contract for 

changes or other conditions that may 

entitle a Contractor to an equitable 

adjustment. If the Contractor deems an 

oral or written order to be a change to 

the contract, it shall promptly submit to 

the Contracting Officer a proposal for 

equitable adjustment attributable to 

such deemed change. The proposal shall 

also conform to the requirements set 

forth herein. 

(c) The proposal shall be submitted 

within the time specified in the 

‘‘Changes’’ clause, or such other time as 

may reasonably be required by the 

Contracting Officer. In the case of a 

proposal submitted based on the 

‘‘Differing Site Conditions’’ clause, the 

notice requirement of that clause shall 

be met. 

(d) Proposals for equitable 

adjustments, including no cost requests 

for adjustment of the contract’s required 


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completion date, shall include a 

detailed breakdown of the following 

elements, as applicable: 

(1) Direct Costs. 

(2) Markups. 

(3) Change to the time for completion 

specified in the contract. 

(e) Direct Costs. The Contractor shall 

separately identify each item of deleted 

and added work associated with the 

change or other condition giving rise to 

entitlement to an equitable adjustment, 

including increases or decreases to 

unchanged work impacted by the 

change. For each item of work so 

identified, the Contractor shall propose 

for itself and, if applicable, its first two 

tiers of subcontractors, the following 

direct costs: 

(1) Material cost broken down by 

trade, supplier, material description, 

quantity of material units, and unit cost 

(including all manufacturing burden 

associated with material fabrication and 

cost of delivery to site, unless separately 

itemized); 

(2) Labor cost broken down by trade, 

employer, occupation, quantity of labor 

hours, and burdened hourly labor rate, 

together with itemization of applied 

labor burdens (exclusive of employer’s 

overhead, profit, and any labor cost 

burdens carried in employer’s overhead 

rate); 

(3) Cost of equipment required to 

perform the work, identified with 

material to be placed or operation to be 

performed; 

(4) Cost of preparation and/or revision 

to shop drawings and other submittals 

with detail set forth in paragraphs (e)(1) 

and (e)(2) of this clause; 

(5) Delivery costs, if not included in 

material unit costs; 

(6) Time-related costs not separately 

identified as direct costs, and not 

included in the Contractor’s or 

subcontractors’ overhead rates, as 

specified in paragraph (g) of this clause; 

and 

(7) Other direct costs. 

(f) Marked-up costs of subcontractors 

below the second tier may be treated as 

other direct costs of a second tier 

subcontractor, unless the Contracting 

Officer requires a detailed breakdown 

under paragraph (i) of this clause. 

(g) Extensions of Time and TimeRelated Costs. The Contractor shall 

propose a daily rate for each firm’s timerelated costs during the affected period, 

and, for each firm, the increase or 

decrease in the number of work days of 

performance attributable to the change 

or other condition giving rise to 

entitlement to an equitable adjustment, 

with supporting analysis. Entitlement to 

time and time-related costs shall be 

determined as follows: 

(1) Increases or decreases to a firm’s 

time-related costs shall be allowed only 

if such increase or decrease necessarily 

and exclusively results from the change 

or other condition giving rise to 

entitlement to an equitable adjustment. 

(2) The Contractor shall not be 

entitled to an extension of time or 

recovery of its own time-related costs 

except to the extent that such change or 

other condition necessarily and 

exclusively causes its duration of 

performance to extend beyond the 

completion date specified in the 

contract. 

(3) Costs may be characterized as 

time-related costs only if they are 

incurred solely to support performance 

of this contract and the increase or 

decrease in such costs is solely 

dependent upon the duration of a firm’s 

performance of work. 

(4) Costs may not be characterized as 

time-related costs if they are included in 

the calculation of a firm’s overhead rate. 

(5) Equitable adjustment of time and 

time-related costs shall not be allowed 

unless the analysis supporting the 

proposal complies with provisions 

specified elsewhere in this contract 

regarding the Contractor’s project 

schedule. 

(h) Markups. For each firm whose 

direct costs are separately identified in 

the proposal, the Contractor shall 

propose an overhead rate, profit rate, 

and where applicable, a bond rate and 

insurance rate. Markups shall be 

determined and applied as follows: 

(1) Overhead rates shall be negotiated, 

and may be subject to audit and 

adjustment. 

(2) Profit rates shall be negotiated, but 

shall not exceed ten percent, unless 

entitlement to a higher rate of profit may 

be demonstrated. 

(3) The Contractor and its 

subcontractor[s] shall not be allowed 

overhead or profit on the overhead or 

profit received by a subcontractor, 

except to the extent that the 

subcontractor’s costs are properly 

included in other direct costs as 

specified in paragraph (f) of this clause. 

(4) Overhead rates shall be applied to 

the direct costs of work performed by a 

firm, and shall not be allowed on the 

direct costs of work performed by a 

subcontractor to that firm at any tier 

except as set forth below in paragraphs 

(h)(6) and (h)(7) of this clause. 

(5) Profit rates shall be applied to the 

sum of a firm’s direct costs and the 

overhead allowed on the direct costs of 

work performed by that firm. 

(6) Overhead and profit shall be 

allowed on the direct costs of work 

performed by a subcontractor within 

two tiers of a firm at rates equal to only 

fifty percent of the overhead and profit 

rates negotiated pursuant to paragraphs 

(h)(1) and (h)(2) of this clause for that 

firm, but not in excess of ten percent 

when combined. 

(7) Overhead and profit shall not be 

allowed on the direct costs of a 

subcontractor more than two tiers below 

the firm claiming overhead and profit 

for subcontractor direct costs. 

(8) If changes to a Contractor’s or 

subcontractor’s bond or insurance 

premiums are computed as a percentage 

of the gross change in contract value, 

markups for bond and insurance shall 

be applied after all overhead and profit 

is applied. Bond and insurance rates 

shall not be applied if the associated 

costs are included in the calculation of 

a firm’s overhead rate. 

(9) No markup shall be applied to a 

firm’s costs other than those specified 

herein. 

(i) At the request of the Contracting 

Officer, the Contractor shall provide 

such other information as may be 

reasonably necessary to allow 

evaluation of the proposal. If the 

proposal includes significant costs 

incurred by a subcontractor below the 

second tier, the Contracting Officer may 

require the same detail for those costs as 

required for the first two tiers of 

subcontractors, and markups shall be 

applied to these subcontractor costs in 

accordance with paragraph (h). 

(j) Proposal Preparation Costs. If 

performed by the firm claiming them, 

proposal preparations costs shall be 

included in the labor hours proposed as 

direct costs. If performed by an outside 

consultant or law firm, proposal 

preparation costs shall be treated as 

other direct costs to the firm incurring 

them. Requests for proposal preparation 

costs shall include the following: 

(1) A copy of the contract or other 

documentation identifying the 

consultant or firm, the scope of the 

services performed, the manner in 

which the consultant or firm was to be 

compensated, and if compensation was 

paid on an hourly basis, the fully 

burdened and marked-up hourly rates 

for the services provided. 

(2) If compensation was paid on an 

hourly basis, documentation of the 

quantity of hours worked, including 

descriptions of the activities for which 

the hours were billed, and applicable 

rates. 

(3) Written proof of payment of the 

costs requested. The sufficiency of the 

proof shall be determined by the 

Contracting Officer. 

(k) Proposal preparation costs shall be 

allowed only if— 

(1) The nature and complexity of the 

change or other condition giving rise to 


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866 Federal Register / Vol. 74, No. 6 / Friday, January 9, 2009 / Rules and Regulations 

entitlement to an equitable adjustment 

warrants estimating, scheduling, or 

other effort not reasonably foreseeable at 

the time of contract award; 

(2) Proposed costs are not included in 

a firm’s time-related costs or overhead 

rate; and 

(3) Proposed costs were incurred prior 

to a Contracting Officer’s unilateral 

determination of an equitable 

adjustment under the conditions set 

forth in paragraph (o), or were incurred 

prior to the time the request for 

equitable adjustment otherwise became 

a matter in dispute. 

(l) Proposed direct costs, markups, 

and proposal preparation costs shall be 

allowable in the determination of an 

equitable adjustment only if they are 

reasonable and otherwise consistent 

with the contract cost principles and 

procedures set forth in part 31 of the 

Federal Acquisition Regulation (48 CFR 

part 31) in effect on the date of this 

contract. Characterization of costs as 

direct costs, time-related costs, or 

overhead costs must be consistent with 

the requesting firm’s accounting 

practices on other work under this 

contract and other contracts. 

(m) If the Contracting Officer 

determines that it is in the 

Government’s interest that the 

Contractor proceed with a change before 

negotiation of an equitable adjustment is 

completed, the Contracting Officer may 

order the Contractor to proceed on the 

basis of a unilateral modification to the 

contract increasing or decreasing the 

contract price by an amount to be 

determined later. Such increase or 

decrease shall not exceed the increase or 

decrease proposed by the Contractor. 

(n) If the parties cannot agree to an 

equitable adjustment, the Contracting 

Officer may determine the equitable 

adjustment unilaterally. 

(o) The Contractor shall not be 

entitled to any proposal preparation 

costs incurred subsequent to the date of 

a unilateral determination or denial of 

the request if the Contracting Officer 

issues a unilateral determination or 

denial under any of the following 

circumstances: 

(1) The Contractor fails to submit a 

proposal within the time required by 

this contract or such time as may 

reasonably be required by the 

Contracting Officer. 

(2) The Contractor fails to submit 

additional information requested by the 

Contracting Officer within the time 

reasonably required. 

(3) Agreement to an equitable 

adjustment cannot be reached within 60 

days of submission of the Contractor’s 

proposal or receipt of additional 

requested information, despite the 

Contracting Officer’s diligent efforts to 

negotiate the equitable adjustment. 

(End of clause) 

552.243–72 [Removed] 

■ 5. Remove section 552.243–72. 

[FR Doc. E9–215 Filed 1–8–09; 8:45 am] 

BILLING CODE 6820–61–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 071106673–8011–02] 

RIN 0648–XM47 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Inseason Adjustment 

to the 2009 Bering Sea Pollock Total 

Allowable Catch Amount; Correction 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Correction to a temporary rule; 

inseason adjustment; request for 

comments. 

SUMMARY: This document corrects the 

comment period and a date for a 

temporary rule that published in the 

Federal Register on January 2, 2009 (74 

FR 38). That rule adjusted the 2009 total 

allowable catch amount (TAC) for the 

Bering Sea pollock fishery to ensure the 

Bering Sea pollock TAC does not exceed 

the appropriate amount based on the 

best available scientific information for 

pollock in the Bering Sea subarea. One 

typographical error specifies that 

comments are due on the date of 

publication and another typographical 

error specifies that comments are due on 

January 13, 2008. The correct date is 

January 13, 2009. The date that data 

became available is also corrected. 

DATES: Effective 1200 hrs, Alaska local 

time (A.l.t.), December 29, 2008, 

through 2400 hrs, A.l.t., December 31, 

2009, unless otherwise modified or 

superceded through publication of a 

notification in the Federal Register. 

Comments must be received at the 

following address no later than 4:30 

p.m., A.l.t., January 13, 2009. 

ADDRESSES: Send comments to Sue 

Salveson, Assistant Regional 

Administrator, Sustainable Fisheries 

Division, Alaska Region, NMFS, Attn: 

Ellen Sebastian. You may submit 

comments, identified by ‘‘RIN 0648– 

XM47,’’ by any one of the following 

methods: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal eRulemaking Portal website at 

http://www.regulations.gov. 

• Mail: P. O. Box 21668, Juneau, AK 

99802. 

• Fax: (907) 586–7557. 

• Hand delivery to the Federal 

Building: 709 West 9th Street, Room 

420A, Juneau, AK. 

All comments received are a part of 

the public record and will generally be 

posted to http://www.regulations.gov 

without change. All Personal Identifying 

Information (e.g., name, address) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. 

NMFS will accept anonymous 

comments (enter ‘‘N/A’’ in the required 

fields, if you wish to remain 

anonymous). Attachments to electronic 

comments will be accepted in Microsoft 

Word, Excel, WordPerfect, or Adobe 

portable document file (pdf) formats 

only. 

FOR FURTHER INFORMATION CONTACT: 

Mary Furuness, 907–586–7228. 

SUPPLEMENTARY INFORMATION: 

Correction 

The final rule, identified as FR Doc. 

E8–31224 that published in the Federal 

Register on January 2, 2009 (74 FR 38) 

is corrected by fixing three 

typographical errors as follows. 

1. On page 38, in the second column, 

the second paragraph under the DATES 

caption is corrected to read: 

‘‘Comments must be received at the 

following address no later than 4:30 

p.m., A.l.t., January 13, 2009.’’ 

2. On page 39, column 2, in the last 

line the date ‘‘December 19, 2007’’ is 

corrected to read ‘‘December 19, 2008’’. 

3. On page 40, in the first column, 

line 2, the date ‘‘January 13, 2008’’ is 

corrected to read ‘‘January 13, 2009’’. 

Classification 

This action corrects three 

typographical errors and does not 

otherwise change the requirements in 

the January 2, 2009 (74 FR 38) 

temporary rule. 

This action responds to the best 

available information recently obtained 

from the fishery. The Assistant 

Administrator for Fisheries, NOAA 

(AA), finds good cause to waive the 

requirement to provide prior notice and 

opportunity for public comment 

pursuant to the authority set forth at 5 

U.S.C. 553(b)(B) as such requirement is 

impracticable and contrary to the public 

interest. This requirement is 


yshivers on PROD1PC62 with RULES