Federal Register / Vol. 84, No. 169 / Friday, August 30, 2019 / Rules and Regulations 45683 Contractor is responsible for the compliance a declining scale will be used in negotiating DEPARTMENT OF TRANSPORTATION of its subcontractors with the provisions of the percentage of overhead and profit. This this clause. declining scale will also be used to negotiate Federal Railroad Administration (End of clause) the prime Contractor’s or upper-tier 852.236–88 [Removed and Reserved] subcontractor’s fee when work is performed 49 CFR Part 270 by lower-tier subcontractors (to a maximum ■ [Docket No. FRA–2011–0060, Notice No. 11] 15. Section 852.236–88 is removed of three tiers) and will be based on the net and reserved. increased cost to the prime or upper-tier RIN 2130–AC81 ■ 16. Section 852.243–70 is added to subcontractor, as applicable. Profit (fee) shall read as follows: be computed by multiplying the profit System Safety Program percentage by the sum of the direct costs and 852.243–70 Construction Contract AGENCY: Federal Railroad Changes—Supplement. computed overhead costs. Allowable percentages on changes will not exceed the Administration (FRA), Department of As prescribed in 843.205–70, the following: Transportation (DOT). Contracting Officer shall insert this (i) 10 percent overhead and/or 10 percent ACTION: Final rule; stay of regulations. clause in solicitations and contracts for profit (fee) on the first $20,000. construction that are expected to exceed (ii) 7.5 percent overhead and/or 7.5 percent SUMMARY: On August 12, 2016, FRA the micro-purchase threshold. The profit (fee) on the next $30,000. published a final rule requiring Contracting Officer shall fill in the (iii) 5 percent overhead and/or 5 percent commuter and intercity passenger number of days in which a Contractor profit (fee) on a balance over $50,000. railroads to develop and implement a must assert its right to an equitable (2) The Contracting Officer will consider system safety program (SSP) to improve adjustment; however, such amount shall issuing a settlement by determination to the the safety of their operations. FRA has not exceed 60 calendar days. contract if the Contractor’s proposal required stayed the SSP final rule’s requirements until September 4, 2019. FRA is issuing Construction Contract Changes— by paragraph (3) is not received within 30 this final rule to extend that stay until Supplement (SEP 2019) calendar days, or if agreement has not been reached. March 4, 2020. The FAR clauses 52.236–2, Differing Site (c)(1) Overhead and Contractor’s fee DATES: Effective August 29, 2019, 49 Conditions; 52.243–4, Changes; and 52.243– percentages shall be considered to include CFR part 270, stayed February 13, 2017, 5, Changes and Changed Conditions, are insurance other than mentioned herein, field supplemented as follows: at 82 FR 10443, and further stayed (a) Submission of request for equitable and office supervisors and assistants, security March 21, 2017, at 82 FR 14476, May adjustment proposals. When directed by the police, use of small tools, incidental job 22, 2017, at 82 FR 23150, June 7, 2017, Contracting Officer or requested by the burdens, and general home office expenses at 82 FR 26359, November 30, 2017, at Contractor, the Contractor shall, in and no separate allowance will be made. 82 FR 56744, and December 7, 2018, at accordance with FAR 15.403–5, submit Assistants to office supervisors include all 83 FR 63106, is further stayed until proposals for changes in the work exceeding clerical, stenographic and general office help. March 4, 2020. $500,000 in writing to the Contracting Officer Incidental job burdens include, but are not or Administrative Contracting Officer (ACO), ADDRESSES: Docket: For access to the necessarily limited to, office equipment and docket to read background documents and to the resident engineer. supplies, temporary toilets, telephone and (1) The Contractor must provide an or comments received, go to http:// conformance to OSHA requirements. Items itemized breakdown for changes exceeding www.regulations.gov and follow the such as, but not necessarily limited to, the micro-purchase threshold (see FAR online instructions for accessing the review and coordination, estimating and 2.101). docket. (2) The itemized breakdown shall include expediting relative to contract changes are materials, quantities, unit prices, labor costs associated with field and office supervision FOR FURTHER INFORMATION CONTACT: (separated into trades), construction and are considered to be included in the Elizabeth A. Gross, Attorney, U.S. equipment, etc. Labor costs shall be Contractor’s overhead and/or fee percentage. Department of Transportation, Federal identified with specific material placed or (2) Where the Contractor’s or Railroad Administration, Office of Chief operation performed. subcontractor’s portion of a change involves Counsel; telephone: 202–493–1342; (3) Proposals shall be submitted to the credit items, such items must be deducted email: [email protected]. Contracting Officer or ACO and the resident prior to adding overhead and profit for the engineer as expeditiously as possible, but not SUPPLEMENTARY INFORMATION: On August later than [fill-in] calendar days, after receipt party performing the work. The Contractor’s 12, 2016, FRA published a final rule of a written change order by the Contracting fee is limited to the net increase to Contractor requiring commuter and intercity Officer. or subcontractors’ portions of cost computed passenger railroads to develop and (4) Proposals shall be signed by each in accordance with this clause. implement an SSP to improve the safety subcontractor participating in the change. (3) Where a change involves credit items of their operations. See 81 FR 53850. On (5) The Contracting Officer will consider only, a proper measure of the amount of February 10, 2017, FRA stayed the SSP issuing a settlement by determination to the downward adjustment in the contract price is final rule’s requirements until March 21, contract if the Contractor’s proposal required the reasonable cost to the Contractor if it had by paragraph (a)(3) of this clause is not 2017, consistent with the new performed the deleted work. A reasonable Administration’s guidance issued received within the time period specified in allowance for overhead and profit are paragraph (a)(3), or if agreement has not been January 20, 2017, intended to provide properly includable as part of the downward reached. the Administration an adequate adjustment for a deductive change. The (b) Paragraphs (a)(1) through (5) of this opportunity to review new and pending amount of such allowance is subject to clause and the following paragraphs (b)(1) regulations. See 82 FR 10443 (Feb. 13, negotiation. and (2) apply to proposals for changes in the 2017). To provide additional time for work $500,000 or less: (End of clause) that review, FRA extended the stay until (1) As a basis for negotiation, allowances [FR Doc. 2019–18524 Filed 8–29–19; 8:45 am] not to exceed 10 percent each for overhead May 22, 2017, June 5, 2017, December and profit for the party performing the work BILLING CODE 8320–01–P 4, 2017, December 4, 2018, and then will be based on the value of labor, material, September 4, 2019. See 82 FR 14476 and equipment required to accomplish the (Mar. 21, 2017); 82 FR 23150 (May 22, change. As the value of the change increases, 2017); 82 FR 26359 (June 7, 2017); 82 FR VerDate Sep<11>2014 15:51 Aug 29, 2019 Jkt 247001 PO 00000 Frm 00057 Fmt 4700 Sfmt 4700 E:\FR\FM\30AUR1.SGM 30AUR1 jspears on DSK3GMQ082PROD with RULES 45684 Federal Register / Vol. 84, No. 169 / Friday, August 30, 2019 / Rules and Regulations 56744 (Nov. 30, 2017), and 83 FR 63106 meeting was necessary for FRA to implement the rule immediately. No (Dec. 7, 2018). The provisions in part receive input from industry and the other commenters responded to FRA’s 270 were adopted on August 12, 2016, public, and to discuss potential paths request for comment on a proposed stay for the purposes of 49 U.S.C. 20119(b). forward to respond to the Petitions prior extension. That adoption was unaffected by the to FRA taking final action. During the FRA has considered Amtrak’s subsequent stays. meeting, a representative from the comment opposing extension of the stay FRA’s review included petitions for Oregon Department of Transportation in light of Amtrak’s central role in the reconsideration of the SSP final rule asked whether the SSP final rule would Nation’s passenger rail system. (Petitions). Various rail labor be further stayed pending FRA’s Nevertheless, given the number of organizations (Labor Organizations) development of a response to the comments received in response to the filed a single joint petition.1 State and Petitions and public input received at SSP NPRM, the importance of the issues local transportation departments and the meeting. An FRA representative discussed therein, the lack of opposition authorities (States) filed the three other indicated that he anticipated a further to the stay from all commenters except petitions, one of which was a joint stay of the rule to provide time to Amtrak, and FRA’s interest in petition (State Joint Petition).2 The State resolve the issues raised by the addressing the issues raised in the Joint Petition requested that FRA stay petitions. None of the meeting petitions through notice and comment the SSP final rule, and NCDOT participants expressed opposition to a rulemaking prior to requiring full specifically requested that FRA stay the further stay. See generally FRA–2011– compliance with the SSP final rule, FRA rule while FRA was considering the 0060–0046. believes it appropriate to extend the stay petitions. All Petitions were available In response to draft rule text FRA of the rule an additional six months for public comment in the docket for the presented for discussion during the until March 4, 2020.