Federal Register / Vol. 62, No. 163 / Friday, August 22, 1997 / Rules and Regulations 44817

Identification of Uncompensated Overtime

(Oct 1997)

(a) Definitions. As used in this provision—

Uncompensated overtime means the hours

worked without additional compensation in

excess of an average of 40 hours per week by

direct charge employees who are exempt

from the Fair Labor Standards Act.

Compensated personal absences such as

holidays, vacations, and sick leave shall be

included in the normal work week for

purposes of computing uncompensated

overtime hours.

Uncompensated overtime rate is the rate

that results from multiplying the hourly rate

for a 40-hour work week by 40, and then

dividing by the proposed hours per week. For

example, 45 hours proposed on a 40-hour

work week basis at $20 per hour would be

converted to an uncompensated overtime rate

of $17.78 per hour ($20.00×40 divided by

45=$17.78).

(b) For any proposed hours against which

an uncompensated overtime rate is applied,

the offeror shall identify in its proposal the

hours in excess of an average of 40 hours per

week, by labor category at the same level of

detail as compensated hours, and the

uncompensated overtime rate per hour,

whether at the prime or subcontract level.

This includes uncompensated overtime

hours that are in indirect cost pools for

personnel whose regular hours are normally

charged direct.

(c) The offeror’s accounting practices used

to estimate uncompensated overtime must be

consistent with its cost accounting practices

used to accumulate and report

uncompensated overtime hours.

(d) Proposals that include unrealistically

low labor rates, or that do not otherwise

demonstrate cost realism, will be considered

in a risk assessment and will be evaluated for

award in accordance with that assessment.

(e) The offeror shall include a copy of its

policy addressing uncompensated overtime

with its proposal.

(End of provision)

[FR Doc. 97–21492 Filed 8–21–97; 8:45 am]

BILLING CODE 6820–EP–P

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Parts 8, 13, and 51

[FAC 97–01; FAR Case 96–602; Item VIII]

RIN 9000–AH29

Federal Acquisition Regulation; ADP/

Telecommunications Federal Supply

Schedules

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 have

agreed on a final rule amending the

Federal Acquisition Regulation (FAR)

with respect to GSA’s Federal Supply

Schedules program. This regulatory

action was not subject to Office of

Management and Budget review under

Executive Order 12866, dated

September 30, 1993, and is not a major

rule under 5 U.S.C. 804.

DATES: Effective October 21, 1997.

FOR FURTHER INFORMATION CONTACT: The

FAR Secretariat, Room 4035, GS

Building, Washington, DC 20405 (202)

501–4755 for information pertaining to

status or publication schedules. For

clarification of content, contact Ms.

Linda Nelson, Procurement Analyst, at

(202) 501–1900. Please cite FAC 97–01,

FAR case 96–602.

SUPPLEMENTARY INFORMATION:

A. Background

This final rule amends FAR Parts 8,

13, and 51 to recognize the reassignment

of Federal Supply Schedule contracts

for ADP/Telecommunications to GSA’s

Federal Supply Service to add new

coverage on the ‘‘GSA Advantage!’’

program, clarify when ordering offices

should seek price reductions under

schedule contracts, and to clarify

procedures for placing schedule orders

above the maximum order threshold.

A proposed rule requesting comment

was published in the Federal Register at

61 FR 52844, October 8, 1996. Thirtyeight comments were received from

twelve respondents. All comments were

considered in developing the final rule.

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 the

rule merely updates and clarifies

guidance for Government agencies

regarding use of the GSA Federal

Supply Schedule program.

C. Paperwork Reduction Act

The Paperwork Reduction Act does

not apply because the changes to the

FAR do not impose recordkeeping or

information collection requirements, or

collections of information from offerors,

contractors, or members of the public

which 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 8, 13,

and 51

Government procurement.

Dated: August 7, 1997.

Edward C. Loeb,

Director, Federal Acquisition Policy Division.

Therefore, 48 CFR Parts 8, 13, and 51

are amended as set forth below:

1. The authority citation for 48 CFR

Parts 8, 13, and 51 continues to read as

follows:

Authority: 40 U.S.C. 486(c); 10 U.S.C.

chapter 137; and 42 U.S.C. 2473(c).

PART 8—REQUIRED SOURCES OF

SUPPLIES AND SERVICES

2. Section 8.401 is revised to read as

follows:

8.401 General.

(a) The Federal Supply Schedule

program, directed and managed by the

General Services Administration (GSA),

provides Federal agencies with a

simplified process for obtaining

commonly used commercial supplies

and services at prices associated with

volume buying (also see 8.001).

Indefinite delivery contracts (including

requirements contracts) are established

with commercial firms to provide

supplies and services at stated prices for

given periods of time. Similar systems

of schedule-type contracting are used

for military items managed by the

Department of Defense. These systems

are not included in the Federal Supply

Schedule program covered by this

subpart.

(b) The GSA schedule contracting

office issues publications, entitled

Federal Supply Schedules, containing

the information necessary for placing

delivery orders with schedule

contractors. Ordering offices issue

delivery orders directly to the schedule

contractors for the required supplies

and services. Ordering offices may

request copies of schedules by

completing GSA Form 457, FSS

Publications Mailing List Application,

and mailing it to the GSA Centralized

Mailing List Service (7CAFL), P.O. Box

6477, Fort Worth, TX 76115. Copies of

GSA Form 457 also may be obtained

from this address.

(c) GSA offers an on-line shopping

service called ‘‘GSA Advantage!’’ that

enables ordering offices to search

product specific information (i.e.,

national stock number, part number,

common name), review delivery

options, place orders directly with

contractors (or ask GSA to place orders

on the agency’s behalf), and pay
44818 Federal Register / Vol. 62, No. 163 / Friday, August 22, 1997 / Rules and Regulations

contractors for orders using the

Governmentwide commercial purchase

card (or pay GSA). Ordering offices may

access the ‘‘GSA Advantage!’’ shopping

service by connecting to the Internet

and using a web browser to connect to

the Acquisition Reform Network (http:/

/www.arnet.gov) or the GSA, Federal

Supply Service (FSS) Home Page (http:/

/www.fss.gsa.gov). For more

information or assistance, contact GSA

at Internet e-mail address:

gsa.advantage@gsa.gov.

3. Section 8.402 is added to read as

follows:

8.402 Applicability.

Procedures in this subpart apply to

Federal Supply Schedule contracts.

Occasionally, special ordering

procedures may be established. In such

cases the procedures will be outlined in

the ‘‘Federal Supply Schedules’’.

4. Section 8.404 is amended by

revising paragraphs (a) and (b), and the

paragraph heading of (c) to read as

follows:

8.404 Using schedules.

(a) General. When agency

requirements are to be satisfied through

the use of Federal Supply Schedules as

set forth in this subpart, the simplified

acquisition procedures of part 13 and

the small business set-aside provisions

of subpart 19.5 do not apply except for

the provision at 13.202(c)(3). Orders

placed pursuant to a Multiple Award

Schedule (MAS), using the procedures

in this subpart, are considered to be

issued pursuant to full and open

competition (see 6.102(d)(3)). Therefore,

when placing orders under Federal

Supply Schedules, ordering offices need

not seek further competition, synopsize

the requirement, make a separate

determination of fair and reasonable

pricing, or consider small business setasides in accordance with subpart 19.5.

GSA has already determined the prices

of items under schedule contracts to be

fair and reasonable. By placing an order

against a schedule using the procedures

in this section, the ordering office has

concluded that the order represents the

best value and results in the lowest

overall cost alternative (considering

price, special features, administrative

costs, etc.) to meet the Government’s

needs.

(b) Ordering procedures for optional

use schedules—(1) Orders at or below

the micro-purchase threshold. Ordering

offices can place orders at or below the

micro-purchase threshold with any

Federal Supply Schedule contractor.

(2) Orders exceeding the micropurchase threshold but not exceeding

the maximum order threshold. Orders

should be placed with the schedule

contractor that can provide the supply

or service that represents the best value.

Before placing an order, ordering offices

should consider reasonably available

information about the supply or service

offered under MAS contracts by using

the ‘‘GSA Advantage!’’ on-line shopping

service, or by reviewing the catalogs/

pricelists of at least three schedule

contractors and select the delivery and

other options available under the

schedule that meet the agency’s needs.

In selecting the supply or service

representing the best value, the ordering

office may consider—

(i) Special features of the supply or

service that are required in effective

program performance and that are not

provided by a comparable supply or

service;

(ii) Trade-in considerations;

(iii) Probable life of the item selected

as compared with that of a comparable

item;

(iv) Warranty considerations;

(v) Maintenance availability;

(vi) Past performance; and

(vii) Environmental and energy

efficiency considerations.

(3) Orders exceeding the maximum

order threshold. Each schedule contract

has an established maximum order

threshold. This threshold represents the

point where it is advantageous for the

ordering office to seek a price reduction.

In addition to following the procedures

in paragraph (b)(2) of this section and

before placing an order that exceeds the

maximum order threshold, ordering

offices shall—

(i) Review additional schedule

contractors’ catalogs/pricelists or use

the ‘‘GSA Advantage!’’ on-line shopping

service;

(ii) Based upon the initial evaluation,

generally seek price reductions from the

schedule contractor(s) appearing to

provide the best value (considering

price and other factors); and

(iii) After price reductions have been

sought, place the order with the

schedule contractor that provides the

best value and results in the lowest

overall cost alternative (see 8.404(a)). If

further price reductions are not offered,

an order may still be placed, if the

ordering office determines that it is

appropriate.

(4) Blanket purchase agreements

(BPAs). The establishment of Federal

Supply Schedule BPAs is permitted (see

13.202(c)(3)) when following the

ordering procedures in this subpart. All

schedule contracts contain BPA

provisions. Ordering offices may use

BPAs to establish accounts with

contractors to fill recurring

requirements. BPAs should address the

frequency of ordering and invoicing,

discounts, and delivery locations and

times.

(5) Price reductions. In addition to the

circumstances outlined in paragraph

(b)(3) of this section, there may be

instances when ordering offices will

find it advantageous to request a price

reduction. For example, when the

ordering office finds a schedule supply

or service elsewhere at a lower price or

when a BPA is being established to fill

recurring requirements, requesting a

price reduction could be advantageous.

The potential volume of orders under

these agreements, regardless of the size

of the individual order, may offer the

ordering office the opportunity to secure

greater discounts. Schedule contractors

are not required to pass on to all

schedule users a price reduction

extended only to an individual agency

for a specific order.

(6) Small business. For orders

exceeding the micro-purchase

threshold, ordering offices should give

preference to the items of small business

concerns when two or more items at the

same delivered price will satisfy the

requirement.

(7) Documentation. Orders should be

documented, at a minimum, by

identifying the contractor the item was

purchased from, the item purchased,

and the amount paid. If an agency

requirement in excess of the micropurchase threshold is defined so as to

require a particular brand name,

product, or a feature of a product

peculiar to one manufacturer, thereby

precluding consideration of a product

manufactured by another company, the

ordering office shall include an

explanation in the file as to why the

particular brand name, product, or

feature is essential to satisfy the

agency’s needs.

(c) Ordering procedures for

mandatory use schedules. * * *

PART 13—SIMPLIFIED ACQUISITION

PROCEDURES

5. Section 13.202 is amended by

adding paragraph (a)(4) and revising

paragraph (c)(3) to read as follows:

13.202 Establishment of blanket purchase

agreements (BPAs).

(a) * * *

(4) There is no existing requirements

contract for the same supply or service

that the contracting activity is required

to use.

* * * * *

(c) * * *

(3) Federal Supply Schedule

contractors, if not inconsistent with the
Federal Register / Vol. 62, No. 163 / Friday, August 22, 1997 / Rules and Regulations 44819

terms of the applicable schedule

contract.

* * * * *

PART 51—USE OF GOVERNMENT

SOURCES BY CONTRACTORS

51.103 [Amended]

6. Section 51.103 is amended by

removing paragraph (c) and

redesignating paragraph (d) as (c).

[FR Doc. 97–21493 Filed 8–21–97; 8:45 am]

BILLING CODE 6820–EP–P

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Parts 9 and 19

[FAC 97–01; FAR Case 96–002; Item IX]

RIN 9000–AH66

Federal Acquisition Regulation;

Certificate of Competency

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 have

agreed on an interim rule amending the

Federal Acquisition Regulation (FAR) to

implement revisions made to the Small

Business Administration’s regulations

covering the procurement assistance

programs. This regulatory action was

not subject to Office of Management and

Budget review under Executive Order

12866, dated September 30, 1993, and is

not a major rule under 5 U.S.C. 804.

DATES: Effective date: August 22, 1997

Comment Date: Comments should be

submitted to the FAR Secretariat at the

address shown below on or before

October 21, 1997 to be considered in the

formulation of a final rule.

ADDRESSES: Interested parties should

submit written comments to: General

Services Administration, FAR

Secretariat (MVRS), 1800 F Street, NW,

Room 4035, Washington, DC 20405.

E-Mail comments submitted over the

Internet should be addressed to:

farcase.96–002@gsa.gov.

Please cite FAC 97–01, FAR case 96–

002 in all correspondence related to this

case.

FOR FURTHER INFORMATION CONTACT: The

FAR Secretariat, Room 4035, GS

Building, Washington, DC 20405 (202)

501–4755 for information pertaining to

status or publication schedules. For

clarification of content, contact Ms.

Victoria Moss, Procurement Analyst, at

(202) 501–4764. Please cite FAC 97–01,

FAR case 96–002.

SUPPLEMENTARY INFORMATION:

A. Background

This interim rule amends FAR Parts 9

and 19 to comply with revisions made

to the Small Business Administration’s

(SBA) procurement assistance programs

contained in 13 CFR Part 125 (61 FR

3310, January 31, 1996). This rule

increases the threshold over which

contracting officers may appeal the

award of a Certificate of Competency

(COC) from $25,000 to $100,000;

updates the names of SBA offices

involved in processing COCs; and

implements the requirement that

compliance with the limitations on

subcontracting be considered an

element of responsibility. Also, this

interim rule removes language

implementing Section 15(c) of the Small

Business Act (15 U.S.C. 644(c)) as

amended by Section 305 of Public Law

103–403, Small Business

Administration Reauthorization and

Amendments Act of 1994. Section 305,

which authorized public and private

organizations for the handicapped to

participate in acquisitions set aside for

small businesses, has expired.

B. Regulatory Flexibility Act

This interim rule is not expected 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 the rule does not impose any

new requirements on contractors, large

or small. The Small Business

Administration has certified that the

revisions to 13 CFR 125 being

implemented by this rule will not have

a significant economic impact on a

substantial number of small entities

within the meaning of the Regulatory

Flexibility Act. An initial regulatory

flexibility analysis has therefore not

been performed. Comments are invited

from small businesses and other

interested parties. Comments from small

entities concerning the affected FAR

subparts also will be considered in

accordance with 5 U.S.C. 610. Such

comments must be submitted separately

and cite 5 U.S.C. 601, et seq. (FAC 97–

01, FAR case 96–002) in

correspondence.

C. Paperwork Reduction Act

The Paperwork Reduction Act does

not apply because the changes to the

FAR do not impose recordkeeping or

information collection requirements, or

collections of information from offerors,

contractors, or members of the public

which require the approval of the Office

of Management and Budget under 44

U.S.C. 3501, et seq.

D. Determination To Issue an Interim

Rule

A determination has been made under

the authority of the Secretary of Defense

(DoD), the Administrator of General

Services (GSA), and the Administrator

of the National Aeronautics and Space

Administration (NASA) that urgent and

compelling reasons exist to promulgate

this interim rule without prior

opportunity for public comment. This

action is necessary to conform the

Federal Acquisition Regulation to

revisions made in 13 CFR Part 125,

pertaining to the Small Business

Administration (SBA) procurement

assistance programs. The SBA revisions

became effective on March 1, 1996.

However, pursuant to Public Law 98–

577 and FAR 1.501, public comments

received in response to this interim rule

will be considered in formulating the

final rule.

List of Subjects in 48 CFR Parts 9 and

19

Government procurement.

Dated: August 7, 1997.

Edward C. Loeb,

Director, Federal Acquisition Policy Division.

Therefore, 48 CFR Parts 9 and 19 are

amended as set forth below:

1. The authority citation for 48 CFR

Parts 9 and 19 continues to read as

follows:

Authority: 40 U.S.C. 486(c); 10 U.S.C.

chapter 137; and 42 U.S.C. 2473(c).

PART 9—CONTRACTOR

QUALIFICATIONS

2. Section 9.103 is amended in

paragraph (b) by revising the third

sentence to read as follows:

9.103 Policy.

(b) * * * If the prospective contractor

is a small business concern, the

contracting officer shall comply with

subpart 19.6, Certificates of Competency

and Determinations of Responsibil-

* * *

* * * * *

3. Section 9.104–3 is amended in

paragraph (a) by adding a sentence at

the end, and in paragraph (d) by

redesignating the text as paragraph