[Federal Register Volume 78, Number 123 (Wednesday, June 26, 2013)]
[Rules and Regulations]
[Pages 38535-38537]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-15212]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 31 and 52
[FAC 2005-68; FAR Case 2012-017; Docket 2012-0017, Sequence 1]
RIN 9000-AM38
Federal Acquisition Regulation; Expansion of Applicability of the
Senior Executive Compensation Benchmark
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule.
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SUMMARY: DoD, GSA, and NASA are issuing an interim rule amending the
Federal Acquisition Regulation (FAR) to implement section 803 of the
National Defense Authorization Act for Fiscal Year 2012. In accordance
with section 803, the interim rule expands the application to a broader
group of contractor employees on contracts awarded by DoD, NASA, and
the Coast Guard of the senior executive compensation benchmark amount
which limits the reimbursement of compensation costs. This interim rule
applies section 803 prospectively to contracts awarded on or after (but
not before) the date of enactment of section 803 (which was December
31, 2011), to the contractor compensation costs incurred after January
1, 2012. In addition, also as part of the implementation in the FAR of
section 803, DoD, GSA and NASA are separately issuing a proposed rule
(FAR Case 2012-025) that addresses the retroactive application of
section 803 to contractor compensation costs incurred after January 1,
2012, under contracts that had been awarded before December 31, 2011.
DATES: Effective Date: June 26, 2013.
Comment Date: Interested parties should submit written comments to
the Regulatory Secretariat on or before August 26, 2013 to be
considered in the formulation of a final rule.
ADDRESSES: Submit comments identified by FAC 2005-68, FAR Case 2012-
017, by any of the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by searching for ``FAR Case
2012-017''. Select the link ``Submit a Comment'' that corresponds with
``FAR Case 2012-017.'' Follow the instructions provided at the ``Submit
a Comment'' screen. Please include your name, company name (if any),
and ``FAR Case 2012-017'' on your attached document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), ATTN: Hada Flowers, 1800 F Street, NW., 2nd Floor,
Washington, DC 20405.
Instructions: Please submit comments only and cite FAC 2005-68, FAR
Case 2012-017, 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 N. 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 FAC 2005-68, FAR Case 2012-
017.
SUPPLEMENTARY INFORMATION:
I. Background
The National Defense Authorization Act for Fiscal Year 2012 (Pub.
L. 112-81) was signed into law and effective on December 31, 2011.
Section 803 of the law amended the standards for determining the
individuals affected by the senior executive compensation benchmark
amount. Specifically, section 803 expanded the applicability (reach) of
the existing executive compensation cap so that in the case of DoD,
NASA, and Coast Guard contracts the compensation cap would apply to all
employees of a contractor (instead of just the ``five most highly
compensated'' employees in management positions at each home office and
each segment of the contractor).
In section 803(c)(2), Congress stated that the expanded reach of
the compensation cap ``shall apply with respect to costs of
compensation incurred after January 1, 2012, under contracts entered
into before, on, or after the date of the enactment of this Act''
(which was December 31, 2011). In addition, Congress in section
803(c)(1) stated that the amendments in section 803 shall be
implemented in the FAR. In accordance with section 803(c)(1), DoD, GSA,
and NASA are implementing section 803 in the FAR through the issuance
of this interim rule and a separate proposed rule.
This interim rule amends FAR 31.205-6(p) to require that the
incurred compensation costs for all contractor employees on all DoD,
NASA, and Coast Guard contracts awarded on or after December 31, 2011,
be subject to the senior executive compensation amount. The reference
to 31.205-6(p) in FAR 52.216-7 is also updated to reflect this revision
in 31.205-6(p).
DoD will separately handle the implementation of authority provided
by 10 U.S.C. 2324(e)(1)(P), as amended by section 803(a), in which
Congress has authorized the Secretary of Defense to establish ``one or
more narrowly targeted exceptions for scientists and engineers upon a
determination that such exceptions are needed to ensure that the
Department of Defense has continued access to needed skills and
capabilities.''
As noted above, section 803(c)(2) states that the amendments made
by section 803 ``shall apply with respect to costs of compensation
incurred after January 1, 2012, under contracts entered into before,
on, or after the date of the enactment of this Act,'' which was
December 31, 2011. There are challenges with respect to the retroactive
application of section 803 (i.e., to the application of section 803 to
contracts awarded before the enactment of section 803). The
implementation of section 803 is similar to the implementation of
section 808 of the National Defense Authorization Act for Fiscal Year
1998 (Pub. L. 105-85, November 18, 1997), which imposed a cap on
Government contractor's allowable costs of ``senior executive''
compensation. Section 808, like section 803, retroactively applied to
contracts that already existed on the date of its enactment; both
statutes contain text which applied the statute to contracts awarded
before, on, or after the date of enactment of the underlying act. In
litigation on the application of section 808 to contracts awarded
before the date of the enactment of the statute, the courts held that
section 808 breached contracts awarded before the statutory date of
enactment (General Dynamics Corp. v. U.S., 47 Fed. Cl. 514 (2000); and
ATK Launch Systems, Inc., ASBCA 55395, 2009-1 BCA ] 34118 (2009)).
For these reasons, DoD, GSA, and NASA are implementing section 803
with both an interim rule and a proposed rule. This interim rule
addresses only the prospective application of section 803, i.e., to
contracts awarded on or after its enactment (December 31, 2011). The
separate proposed rule (FAR Case 2012-025) addresses the retroactive
application of section 803 to contracts that had been awarded before
its enactment. In other words, under this
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bifurcated approach, DoD, GSA, and NASA are implementing section 803
through this interim rule for contracts awarded on or after the date of
enactment (December 31, 2011) and, at the same time, DoD, GSA, and NASA
are addressing in the proposed rule the retroactive application of
section 803. DoD, GSA, and NASA seek public comments on both the
interim and proposed rules (and, on the proposed rule, especially with
respect to the potential complexities associated with applying section
803 to contracts that had been awarded before the date of its
enactment).
II. 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 a significant regulatory action and, therefore, was 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.
III. Regulatory Flexibility Act
DoD, GSA, and NASA do not expect this interim 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. However, an initial regulatory flexibility analysis (IRFA) has
been prepared consistent with 5 U.S.C. 603, and is summarized as
follows:
An analysis of data in the Federal Procurement Data System
(FPDS) revealed that most contracts awarded to small entities use
simplified acquisition procedures or are awarded on a competitive,
fixed-price basis, and do not require application of the cost
principle contained in this rule. Furthermore, it is not expected
that a substantial number of small entities will have any employees,
other than possibly among the ``five most highly compensated''
management employees at each home office and each segment of the
contractor, whose compensation costs exceed the executive
compensation benchmark. The current benchmark amount is $763,029,
for costs incurred after January 1, 2011 (77 FR 24226, April 23,
2012). However, at this time an estimate of the number of small
entities whose reimbursement for the compensation costs of their
contractor employees will be limited by this rule is not available.
The interim rule imposes no reporting, recordkeeping, or other
information collection requirements. The rule does not duplicate,
overlap, or conflict with any other Federal rules, and there are no
known significant alternatives to the rule.
The Regulatory Secretariat has submitted a copy of the IRFA to the
Chief Counsel for Advocacy of the Small Business Administration. A copy
of the IRFA may be obtained from the Regulatory Secretariat. DoD, GSA,
and NASA invite comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities.
DoD, GSA, and NASA will also consider comments from small entities
concerning the existing regulations in subparts affected by this rule
in accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAC 2005-68, FAR Case
2012-017) in correspondence.
IV. Paperwork Reduction Act
The interim rule does not contain any information collection
requirements that require the approval of the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
V. 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 because section 803 of Pub. L. 112-81, signed into law on
December 31, 2011, required it to be implemented in the FAR within 180
days of enactment. This statute expands the existing executive
compensation cap so that it would apply to all employees of a
contractor instead of just the ``five most highly compensated''
management employees at each home office and each segment of the
contractor for DoD, NASA, and Coast Guard contracts. Therefore, issuing
an interim rule that is effective upon publication, prior to the
receipt of public comment will allow agencies to immediately implement
the requirements of this law. Pursuant to 41 U.S.C. 1707 and FAR 1.501-
3(b), DoD, GSA, and NASA will consider public comments received in
response to this interim rule in the formation of the final rule.
List of Subjects in 48 CFR Parts 31 and 52
Government procurement.
Dated: June 10, 2013.
Laura Auletta,
Director, Office of Governmentwide Acquisition Policy, Office of
Acquisition Policy, Office of Governmentwide Policy.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 31 and 52 as set
forth below:
0
1. The authority citation for 48 CFR parts 31 and 52 continues to read
as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51
U.S.C. 20115.
PART 31--CONTRACT COST PRINCIPLES AND PROCEDURES
0
2. Amend section 31.205-6 by revising paragraph (p) to read as follows:
31.205-6 Compensation for personal services.
* * * * *
(p) Limitation on allowability of compensation for certain
contractor personnel. (1) Senior executive compensation limit. (i)
Applicability. This paragraph (p)(1) applies to the following:
(A) To all executive agencies, other than DoD, NASA and the Coast
Guard, for contracts awarded before, on, or after December 31, 2011;
(B) To DoD, NASA, and the Coast Guard for contracts awarded before
December 31, 2011;
(ii) Costs incurred after January 1, 1998. For costs incurred after
January 1, 1998, for the compensation of a senior executive in excess
of the benchmark compensation amount determined applicable for the
contractor fiscal year by the Administrator, Office of Federal
Procurement Policy (OFPP), under 41 U.S.C. 1127 are unallowable (10
U.S.C. 2324(e)(1)(P) and 41 U.S.C. 4304(a)(16)). This limitation is the
sole statutory limitation on allowable senior executive compensation
costs incurred after January 1, 1998, under new or previously existing
contracts. This limitation applies whether or not the affected
contracts were previously subject to a statutory limitation on such
costs. (Note that pursuant to section 804 of Pub. L. 105-261, the
definition of ``senior executive'' in (p)(3) has been changed for
compensation costs incurred after January 1, 1999.) (2) All employee
compensation limit. (i) Applicability. This paragraph (p)(2) applies to
DoD, NASA, and the Coast Guard for contracts awarded on or after
December 31, 2011;
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(ii) Costs incurred after January 1, 1998. For costs incurred after
January 1, 1998, for the compensation of any contractor employee in
excess of the benchmark compensation amount, determined applicable for
the contractor fiscal year by the Administrator, Office of Federal
Procurement Policy (OFPP) under 41 U.S.C. 1127 are unallowable (10
U.S.C. 2324(e)(1)(P)).
(3) Definitions. As used in this paragraph (p)--
(i) Compensation means the total amount of wages, salary, bonuses,
deferred compensation (see paragraph (k) of this subsection), and
employer contributions to defined contribution pension plans (see
paragraphs (j)(4) and (q) of this subsection), for the fiscal year,
whether paid, earned, or otherwise accruing, as recorded in the
contractor's cost accounting records for the fiscal year.
(ii) Senior executive means--
(A) Prior to January 2, 1999--
(1) The Chief Executive Officer (CEO) or any individual acting in a
similar capacity at the contractor's headquarters;
(2) The four most highly compensated employees in management
positions at the contractor's headquarters, other than the CEO; and
(3) If the contractor has intermediate home offices or segments
that report directly to the contractor's headquarters, the five most
highly compensated employees in management positions at each such
intermediate home office or segment.
(B) Effective January 2, 1999, the five most highly compensated
employees in management positions at each home office and each segment
of the contractor, whether or not the home office or segment reports
directly to the contractor's headquarters.
(iii) Fiscal year means the fiscal year established by the
contractor for accounting purposes.
(iv) Contractor's headquarters means the highest organizational
level from which executive compensation costs are allocated to
Government contracts.
* * * * *.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
3. Amend section 52.216-7 by revising the date of the clause and
paragraph (d)(2)(iv)(B) to read as follows.
52.216-7 Allowable Cost and Payment.
* * * * *
Allowable Cost and Payment (JUNE 2013)
(d) * * *
(2) * * *
(iv) * * *
(B) General organizational information and limitation on
allowability of compensation for certain contractor personnel. See
31.205-6(p). Additional salary reference information is available at
http://www.whitehouse.gov/omb/procurement_index_exec_comp/.
* * * * *
[FR Doc. 2013-15212 Filed 6-25-13; 8:45 am]
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