[Federal Register Volume 75, Number 183 (Wednesday, September 22, 2010)]
[Proposed Rules]
[Pages 57719-57720]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-23589]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 52

[FAR Case 2009-034; Docket 2010-0098; Sequence 1]
RIN: 9000-AL73


Federal Acquisition Regulation; TINA Interest Calculations

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Proposed rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (the Councils) are proposing to amend 
the Federal Acquisition Regulation (FAR) to revise the clauses at FAR 
52.214-27, 52.215-10 and 52.215-11 to require compound interest 
calculations be applied to Government overpayments as a result of 
defective cost or pricing data.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat on or before November 22, 2010 to be considered 
in the formulation of a final rule.

ADDRESSES: Submit comments identified by FAR Case 2009-034 by any of 
the following methods:
    <bullet> Regulations.gov: http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by inputting ``FAR Case 
2009-034'' under the heading ``Enter Keyword or ID'' and selecting 
``Search''. Select the link ``Submit a Comment'' that corresponds with 
``FAR Case 2009-034''. Follow the instructions provided at the ``Submit 
a Comment'' screen. Please include your name, company name (if any), 
and ``FAR Case 2009-034'' on your attached document.
    <bullet> Fax: 202-501-4067.
    <bullet> Mail: General Services Administration, Regulatory 
Secretariat (MVCB), ATTN: Hada Flowers, 1800 F Street, NW., Room 4041, 
Washington, DC 20405.
    Instructions: Please submit comments only and cite FAR Case 2009-
034, 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: Mr. Edward Chambers, Procurement 
Analyst, at (202) 501-3221 for clarification of content. For 
information pertaining to status or publication schedules, contact the 
Regulatory Secretariat at (202) 501-4755. Please cite FAR case 2009-
034.

SUPPLEMENTARY INFORMATION:

A. Background

    On September 14, 2009, the U.S. Court of Appeals for the Federal 
Circuit (CAFC) issued a decision regarding the method of interest 
calculation on Cost Accounting Standards (CAS) cost impacts (See GATES 
v. Raytheon Co., 584 F.3d 1062 (Fed. Cir. 2009)). The interest on CAS 
cost impacts is set by reference in the enabling statute to 26 U.S.C. 
6621. The CAFC ruled that the citation led to calculation of the 
interest using daily compounding. The Truth in Negotiation Act (TINA) 
also references 26 U.S.C. 6621 for interest calculation. This proposed 
rule replaces the term ``simple interest'' as the requirement for 
calculating interest for TINA cost impacts with the phrase ``Interest 
compounded daily as required by 26 U.S.C. 6622.'' Thus, compound 
interest calculations will be applied to Government overpayments as a 
result of defective cost or pricing data.
    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 the rule merely clarifies the statutory method for calculating 
interest in the rare instances when a contractor is found to be in 
violation of TINA. Since TINA requirements generally do not apply to 
contracts with small entities,

[[Page 57720]]

and since the numbers of contractors found to have submitted defective 
cost or pricing data are a minute subset of contractors to whom TINA 
applies, the rule is not expected to apply to a substantial number of 
small entities. Furthermore, the differential in interest computing 
methods is not expected to amount to a significant economic 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 Part 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 2009-034), in 
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. Chapter 35, et seq.

List of Subjects in 48 CFR Part 52

    Government procurement.

    Dated: September 15, 2010.
Edward Loeb,
Director, Acquisition Policy Division.

    Therefore, DoD, GSA, and NASA propose amending 48 CFR part 52 as 
set forth below:

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    1. The authority citation for 48 CFR part 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).

    2. Amend section 52.214-27 by--
    a. Revising the date of the clause; and
    b. Removing from paragraph (e)(1) ``Simple interest'' and adding 
``Interest compounded daily, as required by 26 U.S.C. 6622,'' in its 
place.
    The revised text reads as follows:


52.214-27  Price Reduction for Defective Cost or Pricing Data--
Modifications--Sealed Bidding.

* * * * *

Price Reduction for Defective Cost or Pricing Data--Modifications--
Sealed Bidding (Date)

* * * * *
    3. Amend section 52.215-10 by--
    a. Revising the date of the clause; and
    b. Removing from paragraph (d)(1) ``Simple interest'' and adding 
``Interest compounded daily, as required by 26 U.S.C. 6622,'' in its 
place.
    The revised text reads as follows:


52.215-10  Price Reduction for Defective Cost or Pricing Data.

* * * * *

Price Reduction for Defective Cost or Pricing Data (Date)

* * * * *
    4. Amend section 52.215-11 by--
    a. Revising the date of the clause; and
    b. Removing from paragraph (e)(1) ``Simple interest'' and adding 
``Interest compounded daily, as required by 26 U.S.C. 6622,'' in its 
place.
    The revised text reads as follows:


52.215--11  Price Reduction for Defective Cost or Pricing Data--
Modifications.

* * * * *

Price Reduction for Defective Cost or Pricing Data-Modifications (Date)

* * * * *
[FR Doc. 2010-23589 Filed 9-21-10; 8:45 am]
BILLING CODE 6820-EP-P