18106 Federal Register / Vol. 77, No. 59 / Tuesday, March 27, 2012 / Rules and Regulations 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 64 

[CG Docket No. 10–51; FCC 11–54] 

Structure and Practices of the Video 

Relay Service Program 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule; correction. 

SUMMARY: The Federal Communications 

Commission (FCC) is correcting a final 

rule that appeared in the Federal 

Register of September 26, 2011. The 

document announces the effective date 

of rules containing information 

collection requirements approved by the 

Office of Management and Budget that 

were adopted by the FCC to prevent 

fraud, waste, and abuse in the Video 

Relay Service (VRS) industry. 

DATES: Effective September 26, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Gregory Hlibok, Consumer and 

Governmental Affairs Bureau, Disability 

Rights Office, at (202) 559–5158, or 

email Gregory.Hlibok@fcc.gov. 

SUPPLEMENTARY INFORMATION: This 

document makes the following 

corrections to the final rule published 

September 26, 2011, 76 FR 59269: 

On page 59270, column 2, correct 

paragraph (c) to read as follows: 

(c) Data Filed with the Fund 

Administrator to Support Payment 

Claims. TRS providers shall provide the 

following data associated with each TRS 

call for which a TRS provider seeks 

compensation in its filing with the Fund 

Administrator: (1) The call record ID 

sequence; (2) CA ID number; (3) session 

start and end times; (4) conversation 

start and end times; (5) incoming 

telephone number and IP address (if call 

originates with an IP-based device) at 

the time of call; (6) outbound telephone 

number and IP address (if call 

terminates with an IP-based device) at 

the time of call; (7) total conversation 

minutes; (8) total session minutes; (9) 

the call center (by assigned center ID 

number) that handles the call; and (10) 

the URL address through which the call 

was initiated. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

[FR Doc. 2012–7245 Filed 3–26–12; 8:45 am] 

BILLING CODE 6712–01–P 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Part 1852 

RIN 2700–AD70 

Award Fee for Service and End-Item 

Contracts 

AGENCY: National Aeronautics and 

Space Administration. 

ACTION: Final rule. 

SUMMARY: NASA has adopted, without 

change, a final rule amending the NASA 

FAR Supplement (NFS) to update the 

Award Fee for Service Contracts clause 

(NFS 1852.216–76) to clarify that the 

amount of award fee held in reserve, if 

any, shall not exceed $100,000 for the 

contract, and add similar language to 

the Award Fee for End-Item Contracts 

clause (NFS 1852.216–77) to allow the 

contracting officer to withhold fee 

payments, at a not-to-exceed amount of 

$100,000 for the contract, in reserve to 

protect the Government’s interests 

relative to an orderly and timely 

closeout of the contract. 

DATES: Effective: April 26, 2012. 

FOR FURTHER INFORMATION CONTACT: Bill 

Roets, NASA, Office of Procurement, 

Contract Management Division, Room 

5G86; (202) 358–4483; email: 

william.roets-1@nasa.gov. 

SUPPLEMENTARY INFORMATION: 

A. Background 

A proposed rule was published on 

September 15, 2011 (76 FR 57014) 

updating NFS clause 52.216–76 to 

clarify that the amount of withheld 

award fee shall not exceed $100,000 for 

the contract revising paragraph (d) of 

this clause. As currently written, the 

clause specified a not-to-exceed amount 

of 15 percent of the contract’s potential 

award fee, and on large multi-million 

dollar procurements, this reserve could 

total millions of dollars which would be 

excessive for the intended purpose of 

this reserve. By capping this reserve at 

$100,000, NASA will set the appropriate 

maximum dollar amount for this 

potential reserve and will align this 

clause with similar language in FAR 

clauses 52.216–8, Fixed-Fee, and 

52.216–10, Incentive Fee. Similar 

language relative to withholding a 

reserve amount of fee, not to exceed 

$100,000, to protect the Government’s 

interests relative to an orderly and 

timely closeout of the contract, is also 

being added to the Award Fee for End 

Item Contracts clause (NFS 1852.216– 

77). NASA received no comments on 

the proposed rule and has adopted the 

proposed rule as a final rule without 

change. 

B. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 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). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is not a significant 

regulatory action and, therefore, was not 

subject to review under section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

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

804. 

C. Regulatory Flexibility Act 

NASA 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, at 5 U.S.C. 601, et seq., 

because it merely updates, for 

clarification purposes, the maximum 

amount of award fee that can be 

withheld on a contract which will 

provide a benefit to all entities both 

large and small. In addition, award fee 

contracts are largely the province of 

large businesses with large dollar 

contracts and the changes promulgated 

in this final rule do not directly affect 

the current processes of Federal 

contractors. No comments from small 

entities were submitted in reference to 

the Regulatory Flexibility Act request 

under the proposed rule. 

D. Paperwork Reduction Act 

The Paperwork Reduction Act (Pub. 

L., 104–13) does not apply because this 

final rule does not contain any 

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 Part 1852 

Government procurement. 

Sheryl Goddard, 

Acting Assistant Administrator for 

Procurement. 

Accordingly, 48 CFR part 1852 is 

amended as follows: 

■ 1. The authority citation for 48 CFR 

part 1852 continues to read as follows: 

Authority: 42 U.S.C. 2455(a), 2473(c)(1). 

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Federal Register / Vol. 77, No. 59 / Tuesday, March 27, 2012 / Rules and Regulations 18107 

PART 1852—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 2. Section 1852.216–76 is revised to 

read as follows: 

1852.216–76 Award fee for service 

contracts. 

As prescribed in 1816.406–70(a), 

insert the following clause: 

AWARD FEE FOR SERVICE CONTRACTS 

(APR 2012) 

(a) The contractor can earn award fee from 

a minimum of zero dollars to the maximum 

stated in NASA FAR Supplement clause 

1852.216–85, ‘‘Estimated Cost and Award 

Fee’’ in this contract. 

(b) Beginning 6* months after the effective 

date of this contract, the Government shall 

evaluate the Contractor’s performance every 

6* months to determine the amount of award 

fee earned by the contractor during the 

period. The Contractor may submit a selfevaluation of performance for each 

evaluation period under consideration. These 

self-evaluations will be considered by the 

Government in its evaluation. The 

Government’s Fee Determination Official 

(FDO) will determine the award fee amounts 

based on the Contractor’s performance in 

accordance with [identify performance 

evaluation plan]. The plan may be revised 

unilaterally by the Government prior to the 

beginning of any rating period to redirect 

emphasis. 

(c) The Government will advise the 

Contractor in writing of the evaluation 

results. The [insert payment office] will make 

payment based on [Insert method of 

authorizing award fee payment, e.g., issuance 

of unilateral modification by contracting 

officer]. 

(d) The Contracting Officer may direct the 

withholding of earned award fee payments 

until a reserve is set aside in an amount that 

the Contracting Officer considers necessary 

to protect the Government’s interest relative 

to an orderly and timely closeout of the 

contract. This reserve shall not exceed 15 

percent of the contract’s total potential award 

fee or $100,000, whichever is less. 

(e) The amount of award fee which can be 

awarded in each evaluation period is limited 

to the amounts set forth at [identify location 

of award fee amounts]. Award fee which is 

not earned in an evaluation period cannot be 

reallocated to future evaluation periods. 

(f)(1) Provisional award fee payments 

[insert ‘‘will’’ or ‘‘will not’’, as applicable] be 

made under this contract pending the 

determination of the amount of fee earned for 

an evaluation period. If applicable, 

provisional award fee payments will be made 

to the Contractor on a [insert the frequency 

of provisional payments (not more often than 

monthly)] basis. The total amount of award 

fee available in an evaluation period that will 

be provisionally paid is the lesser of [Insert 

a percent not to exceed 80 percent] or the 

prior period’s evaluation score. 

(2) Provisional award fee payments will be 

superseded by the final award fee evaluation 

for that period. If provisional payments 

exceed the final evaluation score, the 

Contractor will either credit the next 

payment voucher for the amount of such 

overpayment or refund the difference to the 

Government, as directed by the Contracting 

Officer. 

(3) If the Contracting Officer determines 

that the Contractor will not achieve a level 

of performance commensurate with the 

provisional rate, payment of provisional 

award fee will be discontinued or reduced in 

such amounts as the Contracting Officer 

deems appropriate. The Contracting Officer 

will notify the Contractor in writing if it is 

determined that such discontinuance or 

reduction is appropriate. 

(4) Provisional award fee payments [insert 

‘‘will’’ or ‘‘will not’’, as appropriate] be made 

prior to the first award fee determination by 

the Government. 

(g) Award fee determinations are unilateral 

decisions made solely at the discretion of the 

Government. 

* [A period of time greater or lesser than 6 

months may be substituted in accordance 

with 1816.405–272(a).] 

(End of clause) 

■ 3. Section 1852.216–77 is revised to 

read as follows: 

1852.216–77 Award fee for end item 

contracts. 

As prescribed in 1816.406–70(b), 

insert the following clause: 

AWARD FEE FOR END ITEM CONTRACTS 

(APR 2012) 

(a) The contractor can earn award fee, or 

base fee, if any, from a minimum of zero 

dollars to the maximum stated in NASA FAR 

Supplement clause 1852.216–85, ‘‘Estimated 

Cost and Award Fee’’ in this contract. All 

award fee evaluations, with the exception of 

the last evaluation, will be interim 

evaluations. At the last evaluation, which is 

final, the Contractor’s performance for the 

entire contract will be evaluated to determine 

total earned award fee. No award fee or base 

fee will be paid to the Contractor if the final 

award fee evaluation is ‘‘poor/ 

unsatisfactory.’’ 

(b) Beginning 6* months after the effective 

date of this contract, the Government will 

evaluate the Contractor’s interim 

performance every 6* months to monitor 

Contractor performance prior to contract 

completion and to provide feedback to the 

Contractor. The evaluation will be performed 

in accordance with [identify performance 

evaluation plan] to this contract. The 

Contractor may submit a self-evaluation of 

performance for each period under 

consideration. These self-evaluations will be 

considered by the Government in its 

evaluation. The Government will advise the 

Contractor in writing of the evaluation 

results. The plan may be revised unilaterally 

by the Government prior to the beginning of 

any rating period to redirect emphasis. 

(c)(1) Base fee, if applicable, will be paid 

in [Insert ‘‘monthly’’, or less frequent period] 

installments based on the percent of 

completion of the work as determined by the 

Contracting Officer. 

(2) Interim award fee payments will be 

made to the Contractor based on each interim 

evaluation. The amount of the interim award 

fee payment is limited to the lesser of the 

interim evaluation score or 80 percent of the 

fee allocated to that period less any 

provisional payments made during the 

period. All interim award fee payments will 

be superseded by the final award fee 

determination. 

(3) Provisional award fee payments will 

[insert ‘‘not’’ if applicable] be made under 

this contract pending each interim 

evaluation. If applicable, provisional award 

fee payments will be made to the Contractor 

on a [insert the frequency of provisional 

payments (not more often than monthly) 

basis. The amount of award fee which will 

be provisionally paid in each evaluation 

period is limited to [Insert a percent not to 

exceed 80 percent] of the prior interim 

evaluation score (see [insert applicable cite]). 

Provisional award fee payments made each 

evaluation period will be superseded by the 

interim award fee evaluation for that period. 

If provisional payments made exceed the 

interim evaluation score, the Contractor will 

either credit the next payment voucher for 

the amount of such overpayment or refund 

the difference to the Government, as directed 

by the Contracting Officer. If the Government 

determines that (i) the total amount of 

provisional fee payments will apparently 

substantially exceed the anticipated final 

evaluation score, or (ii) the prior interim 

evaluation is ‘‘poor/unsatisfactory,’’ the 

Contracting Officer will direct the suspension 

or reduction of the future payments and/or 

request a prompt refund of excess payments 

as appropriate. Written notification of the 

determination will be provided to the 

Contractor with a copy to the Deputy Chief 

Financial Officer (Finance). 

(4) All interim (and provisional, if 

applicable) fee payments will be superseded 

by the fee determination made in the final 

award fee evaluation. The Government will 

then pay the Contractor, or the Contractor 

will refund to the Government the difference 

between the final award fee determination 

and the cumulative interim (and provisional, 

if applicable) fee payments. If the final award 

fee evaluation is ‘‘poor/unsatisfactory’’, any 

base fee paid will be refunded to the 

Government. 

(5) Payment of base fee, if applicable, will 

be made based on submission of an invoice 

by the Contractor. Payment of award fee will 

be made by the [insert payment office] based 

on [Insert method of making award fee 

payment, e.g., issuance of a unilateral 

modification by the Contracting Officer]. 

(d) The Contracting Officer may direct the 

withholding of interim award fee payments 

until a reserve is set aside in an amount that 

the Contracting Officer considers necessary 

to protect the Government’s interest relative 

to an orderly and timely closeout of the 

contract. This reserve shall not exceed 15 

percent of the contracts total potential award 

fee or $100,000, whichever is less. 

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18108 Federal Register / Vol. 77, No. 59 / Tuesday, March 27, 2012 / Rules and Regulations 

(e) Award fee determinations are unilateral 

decisions made solely at the discretion of the 

Government. 

* [A period of time greater or lesser than 

6 months may be substituted in accordance 

with 1816.405–272(a).] 

(End of clause) 

[FR Doc. 2012–5797 Filed 3–26–12; 8:45 am] 

BILLING CODE 7510–01–P 

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