[Federal Register: July 26, 2000 (Volume 65, Number 144)]
[Rules and Regulations]
[Page 46064-46068]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26jy00-44]
[[Page 46064]]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 11, 22, 36, 49, and 52
[FAC 97-19; FAR Case 1999-003; Item III]
RIN 9000-AI63
Federal Acquisition Regulation; Liquidated Damages
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on a final rule
amending the Federal Acquisition Regulation (FAR) to rewrite guidance
on liquidated damages in plain language.
DATES: Effective Date: September 25, 2000.
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 97-19, FAR case 1999-003.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule clarifies coverage on liquidated damages. This rule
will make it easier for contracting officers to understand the policy
for administering liquidated damages. The only substantive change is at
FAR 11.501(d). The authority to approve reductions in or waivers to
liquidated damages was changed from the Comptroller General to the
Commissioner, Financial Management Service.
Four respondents submitted public comments to the proposed rule.
The Councils considered all comments in drafting the final rule.
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 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 does not
change existing practices. We did not receive any comments regarding
this determination as a result of publication of the proposed rule in
the Federal Register at 65 FR 2272, January 13, 2000.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the 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 11, 22, 36, 49, and 52
Government procurement.
Dated: July 19, 2000.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, DoD, GSA, and NASA propose that 48 CFR parts 11, 22, 36,
49, and 52 be amended as set forth below:
1. The authority citation for 48 CFR parts 11, 22, 36, 49, and 52
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 11--DESCRIBING AGENCY NEEDS
2. Revise Subpart 11.5 to read as follows:
Subpart 11.5--Liquidated Damages
Sec.
11.500 Scope.
11.501 Policy.
11.502 Procedures.
11.503 Contract clauses.
11.500 Scope.
This subpart prescribes policies and procedures for using
liquidated damages clauses in solicitations and contracts for supplies,
services, research and development, and construction. This subpart does
not apply to liquidated damages for subcontracting plans (see 19.705-7)
or liquidated damages related to the Contract Work Hours and Safety
Standards Act (see subpart 22.3).
11.501 Policy.
(a) The contracting officer must consider the potential impact on
pricing, competition, and contract administration before using a
liquidated damages clause. Use liquidated damages clauses only when--
(1) The time of delivery or timely performance is so important that
the Government may reasonably expect to suffer damage if the delivery
or performance is delinquent; and
(2) The extent or amount of such damage would be difficult or
impossible to estimate accurately or prove.
(b) Liquidated damages are not punitive and are not negative
performance incentives (see 16.402-2). Liquidated damages are used to
compensate the Government for probable damages. Therefore, the
liquidated damages rate must be a reasonable forecast of just
compensation for the harm that is caused by late delivery or untimely
performance of the particular contract. Use a maximum amount or a
maximum period for assessing liquidated damages if these limits reflect
the maximum probable damage to the Government. Also, the contracting
officer may use more than one liquidated damages rate when the
contracting officer expects the probable damage to the Government to
change over the contract period of performance.
(c) The contracting officer must take all reasonable steps to
mitigate liquidated damages. If the contract contains a liquidated
damages clause and the contracting officer is considering terminating
the contract for default, the contracting officer should seek
expeditiously to obtain performance by the contractor or terminate the
contract and repurchase (see subpart 49.4). Prompt contracting officer
action will prevent excessive loss to defaulting contractors and
protect the interests of the Government.
(d) The head of the agency may reduce or waive the amount of
liquidated damages assessed under a contract, if the Commissioner,
Financial Management Service, or designee approves (see Treasury Order
145-10).
11.502 Procedures.
(a) Include the applicable liquidated damages clause and liquidated
damages rates in solicitations when the contract will contain
liquidated damages provisions.
(b) Construction contracts with liquidated damages provisions must
describe the rate(s) of liquidated damages assessed per day of delay.
The rate(s) should include the estimated daily cost of Government
inspection and superintendence. The rate(s) should also include an
amount for other expected expenses associated with delayed completion
such as--
[[Page 46065]]
(1) Renting substitute property; or
(2) Paying additional allowance for living quarters.
11.503 Contract clauses.
(a) Use the clause at 52.211-11, Liquidated Damages--Supplies,
Services, or Research and Development, in fixed-price solicitations and
contracts for supplies, services, or research and development when the
contracting officer determines that liquidated damages are appropriate
(see 11.501(a)).
(b) Use the clause at 52.211-12, Liquidated Damages--Construction,
in solicitations and contracts for construction, other than cost-plus-
fixed-fee, when the contracting officer determines that liquidated
damages are appropriate (see 11.501(a)). If the contract specifies more
than one completion date for separate parts or stages of the work,
revise paragraph (a) of the clause to state the amount of liquidated
damages for delay of each separate part or stage of the work.
(c) Use the clause at 52.211-13, Time Extensions, in solicitations
and contracts for construction that use the clause at 52.211-12,
Liquidated Damages--Construction, when that clause has been revised as
provided in paragraph (b) of this section.
PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
3. Revise 22.302 to read as follows:
22.302 Liquidated damages and overtime pay.
(a) When an overtime computation discloses underpayments, the
responsible contractor or subcontractor must pay the affected employee
any unpaid wages and pay liquidated damages to the Government. The
contracting officer must assess liquidated damages at the rate of $10
per affected employee for each calendar day on which the employer
required or permitted the employee to work in excess of the standard
workweek of 40 hours without paying overtime wages required by the Act.
(b) If the contractor or subcontractor fails or refuses to comply
with overtime pay requirements of the Act and the funds withheld by
Federal agencies for labor standards violations do not cover the unpaid
wages due laborers and mechanics and the liquidated damages due the
Government, make payments in the following order--
(1) Pay laborers and mechanics the wages they are owed (or prorate
available funds if they do not cover the entire amount owed); and
(2) Pay liquidated damages.
(c) If the head of an agency finds that the administratively
determined liquidated damages due under paragraph (a) of this section
are incorrect, or that the contractor or subcontractor inadvertently
violated the Act despite the exercise of due care, the agency head
may--
(1) Reduce the amount of liquidated damages assessed for liquidated
damages of $500 or less;
(2) Release the contractor or subcontractor from the liability for
liquidated damages of $500 or less; or
(3) Recommend that the Secretary of Labor reduce or waive
liquidated damages over $500.
(d) After the contracting officer determines the liquidated damages
and the contractor makes appropriate payments, disburse any remaining
assessments in accordance with agency procedures.
4. Sections 22.406-8 and 22.406-9 are revised to read as follows:
22.406-8 Investigations.
Conduct labor standards investigations when available information
indicates such action is warranted. In addition, the Department of
Labor may conduct an investigation on its own initiative or may request
a contracting agency to do so.
(a) Contracting agency responsibilities. Conduct an investigation
when a compliance check indicates that substantial or willful
violations may have occurred or violations have not been corrected.
(1) The investigation must--
(i) Include all aspects of the contractor's compliance with
contract labor standards requirements;
(ii) Not be limited to specific areas raised in a complaint or
uncovered during compliance checks; and
(iii) Use personnel familiar with labor laws and their application
to contracts.
(2) Do not disclose contractor employees' oral or written
statements taken during an investigation or the employee's identity to
anyone other than an authorized Government official without that
employee's prior signed consent.
(3) Send a written request to the Administrator, Wage and Hour
Division, to obtain--
(i) Investigation and enforcement instructions; or
(ii) Available pertinent Department of Labor files.
(4) Obtain permission from the Department of Labor before
disclosing material obtained from Labor Department files, other than
computations of back wages and liquidated damages and summaries of back
wages due, to anyone other than Government contract administrators.
(b) Investigation report. The contracting officer must review the
investigation report on receipt and make preliminary findings. The
contracting officer normally must not base adverse findings solely on
employee statements that the employee does not wish to have disclosed.
However, if the investigation establishes a pattern of possible
violations that are based on employees' statements that are not
authorized for disclosure, the pattern itself may support a finding of
noncompliance.
(c) Contractor notification. After completing the review, the
contracting officer must--
(1) Provide the contractor any written preliminary findings and
proposed corrective actions, and notice that the contractor has the
right to request that the basis for the findings be made available and
to submit written rebuttal information.
(2) Upon request, provide the contractor with rationale for the
findings. However, under no circumstances will the contracting officer
permit the contractor to examine the investigation report. Also, the
contracting officer must not disclose the identity of any employee who
filed a complaint or who was interviewed, without the prior consent of
the employee.
(3)(i) The contractor may rebut the findings in writing within 60
days after it receives a copy of the preliminary findings. The rebuttal
becomes part of the official investigation record. If the contractor
submits a rebuttal, evaluate the preliminary findings and notify the
contractor of the final findings.
(ii) If the contracting officer does not receive a timely rebuttal,
the contracting officer must consider the preliminary findings final.
(4) If appropriate, request the contractor to make restitution for
underpaid wages and assess liquidated damages. If the request includes
liquidated damages, the request must state that the contractor has 60
days to request relief from such assessment.
(d) Contracting officer's report. After taking the actions
prescribed in paragraphs (b) and (c) of this subsection--
(1) The contracting officer must prepare and forward a report of
any violations, including findings and supporting evidence, to the
agency head. Standard Form 1446, Labor Standards Investigation Summary
Sheet, is the first page of the report; and
(2) The agency head must process the report as follows:
[[Page 46066]]
(i) The contracting officer must send a detailed enforcement report
to the Administrator, Wage and Hour Division, within 60 days after
completion of the investigation, if--
(A) A contractor or subcontractor underpaid by $1,000 or more;
(B) The contracting officer believes that the violations are
aggravated or willful (or there is reason to believe that the
contractor has disregarded its obligations to employees and
subcontractors under the Davis-Bacon Act);
(C) The contractor or subcontractor has not made restitution; or
(D) Future compliance has not been assured.
(ii) If the Department of Labor expressly requested the
investigation and none of the conditions in paragraph (d)(2)(i) of this
subsection exist, submit a summary report to the Administrator, Wage
and Hour Division. The report must include--
(A) A summary of any violations;
(B) The amount of restitution paid;
(C) The number of workers who received restitution;
(D) The amount of liquidated damages assessed under the Contract
Work Hours and Safety Standards Act;
(E) Corrective measures taken; and
(F) Any information that may be necessary to review any
recommendations for an appropriate adjustment in liquidated damages.
(iii) If none of the conditions in paragraphs (d)(2)(i) or (ii) of
this subsection are present, close the case and retain the report in
the appropriate contract file.
(iv) If substantial evidence is found that violations are willful
and in violation of a criminal statute, (generally 18 U.S.C. 874 or
1001), forward the report (supplemented if necessary) to the Attorney
General of the United States for prosecution if the facts warrant.
Notify the Administrator, Wage and Hour Division, when the report is
forwarded for the Attorney General's consideration.
(e) Department of Labor investigations. The Department of Labor
will furnish the contracting officer an enforcement report detailing
violations found and any corrective action taken by the contractor, in
investigations that disclose--
(1) Underpayments totaling $1,000 or more;
(2) Aggravated or willful violations (or, when the contracting
officer believes that the contractor has disregarded its obligations to
employees and subcontractors under the Davis-Bacon Act); or
(3) Potential assessment of liquidated damages under the Contract
Work Hours and Safety Standards Act.
(f) Other investigations. The Department of Labor will provide a
letter summarizing the findings of the investigation to the contracting
officer for all investigations that are not described in paragraph (e)
of this subsection.
22.406-9 Withholding from or suspension of contract payments.
(a) Withholding from contract payments. If the contracting officer
believes a violation exists (see 22.406-8), or upon request of the
Department of Labor, the contracting officer must withhold from
payments due the contractor an amount equal to the estimated wage
underpayment and estimated liquidated damages due the United States
under the Contract Work Hours and Safety Standards Act. (See 22.302.)
(1) If the contracting officer believes a violation exists or upon
request of the Department of Labor, the contracting officer must
withhold funds from any current Federal contract or Federally assisted
contract with the same prime contractor that is subject to either
Davis-Bacon Act or Contract Work Hours and Safety Standards Act
requirements.
(2) If a subsequent investigation confirms violations, the
contracting officer must adjust the withholding as necessary. However,
if the Department of Labor requested the withholding, the contracting
officer must not reduce or release the withholding without written
approval of the Department of Labor.
(3) Use withheld funds as provided in paragraph (c) of this
subsection to satisfy assessed liquidated damages, and unless the
contractor makes restitution, validated wage underpayments.
(b) Suspension of contract payments. If a contractor or
subcontractor fails or refuses to comply with the labor standards
clauses of the Davis-Bacon Act and related statutes, the agency, upon
its own action or upon the written request of the Department of Labor,
must suspend any further payment, advance, or guarantee of funds until
the violations cease or until the agency has withheld sufficient funds
to compensate employees for back wages, and to cover any liquidated
damages due.
(c) Disposition of contract payments withheld or suspended. (1)
Forwarding wage underpayments to the Secretary of the Treasury. Upon
final administrative determination, if the contractor or subcontractor
has not made restitution, the contracting officer must forward to the
appropriate disbursing office Standard Form (SF) 1093, Schedule of
Withholdings Under the Davis-Bacon Act (40 U.S.C. 276(a)) and/or
Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333).
Attach to the SF 1093 a list of the name, social security number, and
last known address of each affected employee; the amount due each
employee; employee claims if feasible; and a brief rationale for
restitution. Also, the contracting officer must indicate if restitution
was not made because the employee could not be located. The Government
may assist underpaid employees in preparation of their claims. The
disbursing office must submit the SF 1093 with attached additional data
and the funds withheld (by check) to the Secretary of the Treasury.
(2) Returning of withheld funds to contractor. When funds withheld
exceed the amount required to satisfy validated wage underpayments and
assessed liquidated damages, return the funds to the contractor.
(3) Limitation on forwarding or returning funds. If the Department
of Labor requested the withholding or if the findings are disputed (see
22.406-10(e)), the contracting officer must not forward the funds to
the Secretary of the Treasury, or return them to the contractor without
approval by the Department of Labor.
(4) Liquidated damages. Upon final administrative determination,
the contracting officer must dispose of funds withheld or collected for
liquidated damages in accordance with agency procedures.
PART 36--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
36.206 [Amended]
5. Amend section 36.206 by removing ``shall'' and adding ``must''
in is place.
PART 49--TERMINATION OF CONTRACTS
6. In section 49.402-7, revise paragraph (a); and amend paragraph
(b) by removing ``shall'' and inserting ``must'' in its place. The
revised text reads as follows:
49.402-7 Other damages.
(a) If the contracting officer terminates a contract for default or
follows a course of action instead of termination for default (see
49.402-4), the contracting officer promptly must assess and demand any
liquidated damages to which the Government is entitled under the
contract. Under the contract clause at 52.211-11, these damages are in
addition to any excess repurchase costs.
* * * * *
[[Page 46067]]
7. Revise section 49.404 to read as follows:
49.404 Surety-takeover agreements.
(a) The procedures in this section apply primarily, but not solely,
to fixed-price construction contracts terminated for default.
(b) Since the surety is liable for damages resulting from the
contractor's default, the surety has certain rights and interests in
the completion of the contract work and application of any undisbursed
funds. Therefore, the contracting officer must consider carefully the
surety's proposals for completing the contract. The contracting officer
must take action on the basis of the Government's interest, including
the possible effect upon the Government's rights against the surety.
(c) The contracting officer should permit surety offers to complete
the contract, unless the contracting officer believes that the persons
or firms proposed by the surety to complete the work are not competent
and qualified or the proposal is not in the best interest of the
Government.
(d) There may be conflicting demands for the defaulting
contractor's assets, including unpaid prior earnings (retained
percentages and unpaid progress estimates). Therefore, the surety may
include a ``takeover'' agreement in its proposal, fixing the surety's
rights to payment from those funds. The contracting officer may (but
not before the effective date of termination) enter into a written
agreement with the surety. The contracting officer should consider
using a tripartite agreement among the Government, the surety, and the
defaulting contractor to resolve the defaulting contractor's residual
rights, including assertions to unpaid prior earnings.
(e) Any takeover agreement must require the surety to complete the
contract and the Government to pay the surety's costs and expenses up
to the balance of the contract price unpaid at the time of default,
subject to the following conditions:
(1) Any unpaid earnings of the defaulting contractor, including
retained percentages and progress estimates for work accomplished
before termination, must be subject to debts due the Government by the
contractor, except to the extent that the unpaid earnings may be used
to pay the completing surety its actual costs and expenses incurred in
the completion of the work, but not including its payments and
obligations under the payment bond given in connection with the
contract.
(2) The surety is bound by contract terms governing liquidated
damages for delays in completion of the work, unless the delays are
excusable under the contract.
(3) If the contract proceeds have been assigned to a financing
institution, the surety must not be paid from unpaid earnings, unless
the assignee provides written consent.
(4) The contracting officer must not pay the surety more than the
amount it expended completing the work and discharging its liabilities
under the defaulting contractor's payment bond. Payments to the surety
to reimburse it for discharging its liabilities under the payment bond
of the defaulting contractor must be only on authority of--
(i) Mutual agreement among the Government, the defaulting
contractor, and the surety;
(ii) Determination of the Comptroller General as to payee and
amount; or
(iii) Order of a court of competent jurisdiction.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
8. Revise sections 52.211-11 through 52.211-13 to read as follows:
52.211-11 Liquidated Damages--Supplies, Services, or Research and
Development.
As prescribed in 11.503(a), insert the following clause in
solicitations and contracts:
Liquidated Damages--Supplies, Services, or Research and Development
(Sept. 2000)
(a) If the Contractor fails to deliver the supplies or perform
the services within the time specified in this contract, the
Contractor shall, in place of actual damages, pay to the Government
liquidated damages of $____ per calendar day of delay [Contracting
Officer insert amount].
(b) If the Government terminates this contract in whole or in
part under the Default--Fixed-Price Supply and Service clause, the
Contractor is liable for liquidated damages accruing until the
Government reasonably obtains delivery or performance of similar
supplies or services. These liquidated damages are in addition to
excess costs of repurchase under the Termination clause.
(c) The Contractor will not be charged with liquidated damages
when the delay in delivery or performance is beyond the control and
without the fault or negligence of the Contractor as defined in the
Default--Fixed-Price Supply and Service clause in this contract.
(End of clause)
52.211-12 Liquidated Damages--Construction.
As prescribed in 11.503(b), insert the following clause in
solicitations and contracts:
Liquidated Damages--Construction (Sept 2000)
(a) If the Contractor fails to complete the work within the time
specified in the contract, the Contractor shall pay liquidated
damages to the Government in the amount of ____ [Contracting Officer
insert amount] for each calendar day of delay until the work is
completed or accepted.
(b) If the Government terminates the Contractor's right to
proceed, liquidated damages will continue to accrue until the work
is completed. These liquidated damages are in addition to excess
costs of repurchase under the Termination clause.
(End of clause)
52.211-13 Time Extensions.
As prescribed in 11.503(c), insert the following clause:
Time Extensions (Sept 2000)
Time extensions for contract changes will depend upon the
extent, if any, by which the changes cause delay in the completion
of the various elements of construction. The change order granting
the time extension may provide that the contract completion date
will be extended only for those specific elements related to the
changed work and that the remaining contract completion dates for
all other portions of the work will not be altered. The change order
also may provide an equitable readjustment of liquidated damages
under the new completion schedule.
(End of clause)
9. Revise section 52.222-4 to read as follows:
52.222-4 Contract Work Hours and Safety Standards Act--Overtime
Compensation.
As prescribed in 22.305, insert the following clause:
Contract Work Hours and Safety Standards Act-- Overtime Compensation
(Sept 2000)
(a) Overtime requirements. No Contractor or subcontractor
employing laborers or mechanics (see Federal Acquisition Regulation
22.300) shall require or permit them to work over 40 hours in any
workweek unless they are paid at least 1 and 1/2 times the basic
rate of pay for each hour worked over 40 hours.
(b) Violation; liability for unpaid wages; liquidated damages.
The responsible Contractor and subcontractor are liable for unpaid
wages if they violate the terms in paragraph (a) of this clause. In
addition, the Contractor and subcontractor are liable for liquidated
damages payable to the Government. The Contracting Officer will
assess liquidated damages at the rate of $10 per affected employee
for each calendar day on which the employer required or permitted
the employee to work in excess of the standard workweek of 40 hours
without paying overtime wages required by the Contract Work Hours
and Safety Standards Act.
(c) Withholding for unpaid wages and liquidated damages. The
Contracting Officer will withhold from payments due under the
contract sufficient funds required to satisfy
[[Page 46068]]
any Contractor or subcontractor liabilities for unpaid wages and
liquidated damages. If amounts withheld under the contract are
insufficient to satisfy Contractor or subcontractor liabilities, the
Contracting Officer will withhold payments from other Federal or
Federally assisted contracts held by the same Contractor that are
subject to the Contract Work Hours and Safety Standards Act.
(d) Payrolls and basic records. (1) The Contractor and its
subcontractors shall maintain payrolls and basic payroll records for
all laborers and mechanics working on the contract during the
contract and shall make them available to the Government until 3
years after contract completion. The records shall contain the name
and address of each employee, social security number, labor
classifications, hourly rates of wages paid, daily and weekly number
of hours worked, deductions made, and actual wages paid. The records
need not duplicate those required for construction work by
Department of Labor regulations at 29 CFR 5.5(a)(3) implementing the
Davis-Bacon Act.
(2) The Contractor and its subcontractors shall allow authorized
representatives of the Contracting Officer or the Department of
Labor to inspect, copy, or transcribe records maintained under
paragraph (d)(1) of this clause. The Contractor or subcontractor
also shall allow authorized representatives of the Contracting
Officer or Department of Labor to interview employees in the
workplace during working hours.
(e) Subcontracts. The Contractor shall insert the provisions set
forth in paragraphs (a) through (d) of this clause in subcontracts
exceeding $100,000 and require subcontractors to include these
provisions in any lower tier subcontracts. The Contractor shall be
responsible for compliance by any subcontractor or lower-tier
subcontractor with the provisions set forth in paragraphs (a)
through (d) of this clause.
(End of clause)
[FR Doc. 00-18670 Filed 7-25-00; 8:45 am]
BILLING CODE 6820-EP-P