872 Federal Register / Vol. 74, No. 6 / Friday, January 9, 2009 / Proposed Rules 

Dated: November 18, 2008. 

Gary Klein, 

Associate Administrator. 

For the reasons set forth in the 

preamble, GSA proposes to amend 41 

CFR part 102–192 as set forth below: 

PART 102–192—MAIL MANAGEMENT 

1. The authority citation for 41 CFR 

part 102–192 continues to read as 

follows: 

Authority: 44 U.S.C. 2904; 40 U.S.C. 

121(c). 

2. Revise Subpart B of 41 CFR part 

102–192 to read as follows: 

Subpart B—Financial Requirements for 

All Agencies 

§ 102–192.50 What payment processes are 

we required to use? 

All payments to all service providers 

must be made through a process that 

ensures accountability to the program 

level, as defined in § 102–192.55. 

§ 102–192.55 What options are available to 

show accountability? 

(a) Your agency must show 

accountability by using at least two of 

the following methods: 

(1) Implement or continue using 

commercial payment processes. 

(2) Show quantified dollar savings in 

mail costs that result from management 

action, with a clear explanation of how 

the savings were achieved. Dollar 

savings must be recent, defined as 

occurring within the last five fiscal 

years. That is, after five fiscal years, 

additional information about how the 

agency has achieved recent savings and/ 

or will continue to achieve dollar 

savings will be required in the annual 

mail management report. 

(3) Provide a detailed breakdown of 

all agency mail costs. 

(4) Provide names, responsibility 

areas, and mail costs for program 

officials who are accountable for 75 

percent (or more) of the agency’s 

postage. 

(5) Provide cost-per-piece data for at 

least 75 percent of all outgoing mail. 

(b) Agencies that spend more than $1 

million per year on postage must 

describe how they are showing 

accountability by responding fully, 

beginning with the Fiscal Year 2009 

report, to the questions on 

accountability in the annual report 

format. Agencies that do not respond 

fully or whose responses do not, in the 

judgment of the GSA Office of 

Governmentwide Policy, meet the 

standard established in this paragraph, 

will be considered out of compliance 

with this regulation. 

§ 102–192.60 If my agency spends less 

than $1 million per year on postage and has 

already converted to commercial payment 

processes, are we responsible for selecting 

one of the additional options? 

Any agency that spends less than $1 

million on postage per year and has 

already successfully converted to 

commercial payment is in compliance 

with this regulation and does not need 

to select any additional options 

presented in § 102–192.55. 

§ 102–192.65 If my agency still wants to 

implement the commercial payment 

process, how do we do so? 

Guidance on implementing a 

compliant payment process is in the 

GSA Policy Advisory, Guidelines for 

Federal Agencies on Converting to 

Commercial Payment Systems for 

Postage, which can be found at http:// 

www.gsa.gov/mailpolicy. 

3. Amend § 102–192.90 by revising 

paragraph (f) read as follows: 

§ 102–192.90 What must we include in our 

annual mail management report to GSA? 

* * * * * 

(f) Describe how your agency is 

ensuring accountability for postage by 

identifying which two of the five 

methods (see § 102–192.55) you use to 

meet this objective and explaining in 

detail how these two apply to your 

agency. 

* * * * * 

[FR Doc. E9–172 Filed 1–8–09; 8:45 am] 

BILLING CODE 6820–14–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 22 and 52 

[FAR Case 2007–021; Docket 2009-0014; 

Sequence 1] 

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: Proposed rule. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) are proposing to amend the 

Federal Acquisition Regulation (FAR) to 

specifically require the incorporation of 

the FAR clauses regarding Fair Labor 

Standards Act and Service Contract ActPrice Adjustment (Multi-Year and 

Option Contracts) and Fair Labor 

Standards Act and Service Contract ActPrice Adjustment in time-and-materials 

and labor—hour service contracts that 

are subject to the Service Contract Act. 

DATES: Interested parties should submit 

written comments to the Regulatory 

Secretariat on or before March 10, 2009 

to be considered in the formulation of 

a final rule. 

ADDRESSES: Submit comments 

identified by FAR case 2007–021 by any 

of the following methods: 

• Regulations.gov: http:// 

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

inputting ‘‘FAR Case 2007–021’’ under 

the heading ‘‘Comment or Submission’’. 

Select the link ‘‘Send a Comment or 

Submission’’ that corresponds with FAR 

Case 2007–021. Follow the instructions 

provided to complete the ‘‘Public 

Comment and Submission Form’’. 

Please include your name, company 

name (if any), and ‘‘FAR Case 2007– 

021’’ on your attached document. 

• Fax: 202–501–4067. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(VPR), 1800 F Street, NW, Room 4035, 

ATTN: Hada Flowers, Washington, DC 

20405. 

Instructions: Please submit comments 

only and cite FAR case 2007–021 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. 

Meredith Murphy, Procurement 

Analyst, at (202) 208–6925 for 

clarification of content. For information 

pertaining to status or publication 

schedules, contact the Regulatory 

Secretariat at (202) 501–4755. Please 

cite FAR case 2007–021. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This rule proposes to amend the 

Federal Acquisition Regulation (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 52.222–43 and 52.222–44. 

Despite the current prescriptions 

which do not require use of the clauses 

in time-and-materials or labor-hour 


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Federal Register / Vol. 74, No. 6 / Friday, January 9, 2009 / Proposed Rules 873 

contracts, there is, in fact, broad usage 

of the clause(s) in such contracts. 

Adoption of the proposed change would 

achieve consistency throughout the 

Government acquisition community and 

resolve potential inequities where the 

clauses have not been applied. Not only 

would this achieve an equitable result 

for contractors, but it would 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 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 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 

will not achieve the consistent results 

that use of the Service Contract Act 

price adjustment clause(s) will achieve. 

Requirement by the prescription for the 

clauses will achieve that consistency 

and at the same time will allow the 

Government to avoid any adjustment to 

profit, overhead or general and 

administrative costs that could be 

incurred in addition to wage or fringe 

benefit costs increases. 

The proposed rule requires 

Government time-and-materials and 

labor-hour service contracts to 

incorporate the appropriate price 

adjustment clauses. 

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., 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 

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. 

An Initial Regulatory Flexibility 

Analysis has, therefore, not been 

performed. We invite comments from 

small businesses and other interested 

parties. The Councils will consider 

comments from small entities 

concerning the affected FAR Parts 22 

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 2007–021), 

in all correspondence. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the proposed 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. 3501, et 

seq. 

List of Subjects in 48 CFR Parts 22 and 

52 

Government procurement. 

Dated: December 9, 2008. 

Al Matera, 

Director, Office of Acquisition Policy. 

Therefore, DoD, GSA, and NASA 

propose amending 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 the date of the clause and 

adding ‘‘(DATE)’’ in its place; by 

removing from paragraph (c)(3) ‘‘(Nov 

2006)’’ and adding ‘‘(Date)’’ in its place; 

and by removing from paragraph (c)(4) 

‘‘(Feb 2002)’’ and adding ‘‘(Date)’’ in its 

place. 

4. Amend section 52.222–43 by 

revising the date of the clause, 

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) (DATE) 

* * * * * 

(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. * * * 

* * * * * 

(End of clause) 

5. Amend section 52.222–44 by 

revising the date of the clause, 

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 (DATE) 

* * * * * 

(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 


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874 Federal Register / Vol. 74, No. 6 / Friday, January 9, 2009 / Proposed Rules 

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. * * * 

* * * * * 

(End of clause) 

[FR Doc. E9–217 Filed 1–8–09; 8:45 am] 

BILLING CODE 6820–EP–S 


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