In late 2013, the BBA (Bipartisan Budget Act) significantly changed the FAR 31.205-6(p) regulatory cap for allowable contractor employee compensation. In a highly politicized action, the Obama Administration convinced Congress to reduce allowable compensation to $487,000 for any contractor employee effective for contracts on or after June 24, 2014. Additionally, Section 702 of the BBA prescribed the method for annual increases to the statutory cap (based upon the change in the Employment Cost Index for all workers as calculated by the BLS (Bureau of Labor Statistics).
Rule Making Without Notification?
Many of us have been (mistakenly) relying on FAR updates (posted in the Federal Register) as the Government’s notification of the annual increases, after all, the $487,000 “cap” established by the 2013 BBA was published as an interim rule in the Federal Register on 06/24/2014 and by all appearances, annual increases would follow the same process (just as annual increases had been posted for years under the prior law, 41 USC 1127). However, OMB has inexplicably bypassed the normal rule making process (i.e. published nothing in the Federal Register) and quietly published revisions to the BBA cap. Those revised “caps” are as follows:
- The revised caps can be found at the Office of Federal Procurement Policy website here.
- The link to the BBA compensation document (with the amounts listed above) is found here.
As expected, the annual increases are nominal at best; with many contractors, the relatively small amount of the increase will probably not move the contractor G&A rate (assumes that most contractor employees whose compensation exceeds the cap are in the G&A pool).
Little Help from FAR
As to the unexpected process for posting the updates, FAR 31.205-6(p)(4) is the regulation which applies to the “cap” on or after 6/24/2014 and to the extent that the cap is subject to revisions, FAR mentions Section 702 of Pub L. 113-67 as the sole statutory limitation on allowable employee compensation costs incurred on or after June 24, 2014. FAR also provides a link, which should assist one in finding the actual amounts of the “cap”; unfortunately, this link doesn’t actually link. Equally misleading (or at least of no help whatsoever), DCAA’s CAM (Contract Audit Manual) 6-414.7 includes a table on the Compensation Ceilings and with respect to 2015, DCAA lists it as “Not yet Established” (2015 is the last year listed in DCAA’s table).
Transparent or Invisible?
Although the Federal Government prides itself on transparency; the process for quietly posting the annual updates is transparent to the point of being invisible. Or in the words of the Captain (warden) in the movie Cool Hand Luke, “What we’ve got here is a failure to communicate”.
(Editor’s note: Thanks to a reader who took the time to initiate his own search for “Whatever happened to the promised annual increase to the statutory cap?”).
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