Voglio sapere a riguardo di…

36234

Federal Register / Vol. 86, No. 129 / Friday, July 9, 2021 / Rules and Regulations
jbell on DSKJLSW7X2PROD with RULES

and, because of this, DoD will not have the detailed information it needs to determine whether contractors are performing inherently governmental functions.
Response: The rule requires the collection of data that supplements information already available to DoD.
The rule assists in the evaluation of DoDs workforce mix and the extent to which the Departments needs are being met through contracted support. It is not necessary to distinguish between the contractor and subcontractor labor hours performed under a contract in order to meet the requirements of the statute or support DoDs total workforce management efforts.
Comment: A respondent expressed concern that the rules collection of labor data cannot be meaningfully used by officials, as the annual reporting cycle will not produce the timely, relevant data needed to inform decision making.
Response: The rule implements the reporting cycle required by 10 U.S.C.
2330a. The statute requires DoD, by the end of the third quarter of each fiscal year, to prepare an annual inventory of the activities performed during the preceding fiscal year pursuant to staff augmentation contracts and contracts closely associated with inherently governmental functions. To support this requirement, the rule requires contractors to input contract data for the preceding fiscal year in SAM no later than October 31 of each fiscal year. The rules October 31 deadline facilitates DoDs compilation and submission of the annual inventory and summary before the third quarter of each fiscal year, as required by 10 U.S.C. 2330a.
d. Difficulties Reporting Direct Labor Hour Data Comment: Two respondents advised that the reporting requirement of the rule may be difficult to meet, because many commercial services are offered at a fixed price and are not broken down into direct labor hours, and subcontractors may consider the data sensitive or proprietary and be hesitant to provide it to contractors. A
respondent advised that, as a result of these issues, the rule may create cost and competition implications for the supply chain because contractors may have to create and price contractual requirements to obtain the information from their subcontractors, and the number of available vendors may be restricted if they choose not to provide the data required by the rule.
As an alternative solution, two respondents recommended that the rule limit the collection of data to the list
VerDate Sep<11>2014

15:58 Jul 08, 2021

Jkt 253001

explicitly identified at 10 U.S.C.
2330ab. Respondents suggested that DoD could apply the methodology used to determine military or civilian fulltime equivalents to the data at 10 U.S.C.
2330ab in order to fulfill the inventory summary required by 10 U.S.C.
2330ac.
Response: The statute requires that the number of contractor employees, expressed as full-time equivalents for direct labor, using direct labor hours and associated cost data collected from contractors be provided for each contract included in the annual inventory. This information is not included in the list of data at 10 U.S.C.
2330ab.
While the Federal Procurement Data System provides DoD with a majority of the requisite data, DoD cannot meet all of the statutory data requirements of the inventory summary, or support the needs of DoDs total workforce management efforts, using only the data listed at 10 U.S.C. 2330ab. Therefore, this rule requires contractors to provide direct labor hour and cost data to implement the statute and support DoD
workforce planning and analysis.
To relieve burden and minimize impact for contractors and subcontractors, the rule requires contractors to report the total number of hours both contractor and subcontractor worked under the contract for the entire fiscal year and does not require a breakdown of those hours by employee type or by subcontractor.
e. Reporting of Subcontractor Data Comment: A respondent recommended that the requirement to report subcontractor data be limited to first-tier subcontractors, which is consistent with the current FAR
requirements for civilian agencies.
Response: Concur. To reduce burden on and maintain consistency for contractors, DoD intends for the reporting requirements and procedures of this rule to be as similar as possible to the existing service contract reporting requirements of the FAR. The intent of the rule is for contractors to report the total number of direct labor hours expended in performing the contracted services during the preceding fiscal year. The total number of hours reported to SAM should represent a combined total of the number of direct labor hours the contractor itself expended performing the contracted services, and the total number of direct labor hours any of the contractors subcontractors expended performing the contracted services. To clarify this intent, the rule is amended to replace the term
PO 00000

Frm 00042

Fmt 4700

Sfmt 4700

subcontract with first-tier subcontract, based on the definition at FAR 4.1701.
Comment: A respondent recommended the rule be revised to specifically authorize contractors to rely on the direct labor hour data received from subcontractors when reporting total labor hours annually in SAM.
Response: The rule simply requires the reporting of the direct labor hours expended on the contracted service for the preceding fiscal year. The rule does not prescribe or suggest a specific methodology that contractors must use to gather this data on its applicable subcontracts, or prescribe a reporting requirement for subcontractors via the flow-down of the contract clause.
Therefore, an amendment to the rule to authorize a specific methodology for gathering the data is not necessary.
III. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Offthe-Shelf Items This rule does not apply the requirements of 10 U.S.C. 2330a, as amended by section 812 of the NDAA
for FY 2017, to contracts at or below the simplified acquisition threshold SAT
or for commercially available off-theshelf items COTS items, but does apply the rule to contracts for the acquisition of commercial items.
A. Background Section 812 of the NDAA for FY 2017
is silent on applicability to contracts and subcontracts in amounts no greater than the SAT or for the acquisition of commercial items. 10 U.S.C. 2330aa, as amended by section 812 of the NDAA
for FY 2017, only requires the collection of data on service contracts, under certain portfolio groups, that exceed $3
million, which effectively precludes application to acquisitions under the SAT. Also, the statute does not provide for civil or criminal penalties.
Therefore, the statute does not apply to contracts or subcontracts in amounts not greater than the SAT or to the acquisition of commercial items unless the Principal Director, Defense Pricing and Contracting, makes a written determination as provided in 41 U.S.C.
1905 and 10 U.S.C. 2375.
B. Applicability To Contracts for the Acquisition of Commercial Items, Excluding COTS Items 10 U.S.C. 2375 exempts contracts and subcontracts for the acquisition of commercial items, including COTS
items, from provisions of law enacted after October 13, 1994, that, as
E:FRFM09JYR1.SGM

09JYR1