General Services Acquisition Regulation; GSAR Case 2006-G515; Rewrite of Part 532, Contract Financing, 58515-58520 [E8-23660]
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Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Proposed Rules
ACTION:
Correction to notice of proposed
rulemaking.
ENVIRONMENTAL PROTECTION
AGENCY
This document contains a
correction to a notice of proposed
rulemaking (REG–128841–07) that was
published in the Federal Register on
Tuesday, September 9, 2008 (73 FR
52220) relating to the public approval
requirements under section 147(f) of the
Internal Revenue Code applicable to taxexempt private activity bonds issued by
State and local governments. The
proposed regulations affect State and
local governmental issuers of taxexempt private activity bonds.
40 CFR Part 52
FOR FURTHER INFORMATION CONTACT:
SUMMARY: The Environmental Protection
Agency (EPA) is proposing to approve a
revision to the Texas State
Implementation Plan (SIP) to meet the
Reasonable Further Progress (RFP)
requirements of the Clean Air Act (CAA)
for the Dallas/Fort Worth (DFW)
moderate 1997 8-hour ozone
nonattainment area. EPA is also
proposing to approve the RFP motor
vehicle emissions budgets (MVEBs) and
a revised 2002 Base Year Emission
Inventory associated with the revision.
EPA is proposing to approve the SIP
revision because it satisfies the RFP,
RFP transportation conformity, and
Emissions Inventory requirements for
1997 8-hour ozone nonattainment areas
classified as moderate, and
demonstrates further progress in
reducing ozone precursors. EPA is
proposing to approve the revision
pursuant to section 110 and part D of
the CAA and EPA’s regulations.
DATES: Written comments must be
received on or before November 6, 2008.
ADDRESSES: Comments may be mailed to
Mr. Guy Donaldson, Chief, Air Planning
Section (6PD–L), Environmental
Protection Agency, 1445 Ross Avenue,
Suite 1200, Dallas, Texas 75202–2733.
Comments may also be submitted
electronically or through hand delivery/
courier by following the detailed
instructions in the ADDRESSES section of
the direct final rule located in the rules
section of this Federal Register.
FOR FURTHER INFORMATION CONTACT:
Emad Shahin, Air Planning Section
(6PD–L), Environmental Protection
Agency, Region 6, 1445 Ross Avenue,
Suite 700, Dallas, Texas 75202–2733,
telephone (214) 665–6717; fax number
214–665–7263; e-mail address
shahin.emad@epa.gov.
SUPPLEMENTARY INFORMATION: In the
final rules section of this Federal
Register, EPA is approving the State’s
SIP submittal as a direct final rule
without prior proposal because the
SUMMARY:
David White, (202) 622–3980 (not a tollfree number).
SUPPLEMENTARY INFORMATION:
Background
The correction notice that is the
subject of this document is under
section 147 of the Internal Revenue
Code.
Need for Correction
As published, the notice of proposed
rulemaking (REG–128841–07) contains
an error that may prove to be misleading
and is in need of clarification.
Correction of Publication
Accordingly, the publication of the
notice of proposed rulemaking (REG–
128841–07), which was the subject of
FR Doc. E8–20771, is corrected as
follows:
§ 1.147(f)–1
[Corrected]
On page 52225, column 1, § 1.147(f)–
1(b)(6)(ii)(A), line 4, the language ‘‘and
public approval stated would to be’’ is
corrected to read ‘‘and public approval
stated would be’’.
LaNita Van Dyke,
Chief, Publications and Regulations Branch,
Legal Processing Division, Associate Chief
Counsel, (Procedure and Administration).
[FR Doc. E8–23651 Filed 10–6–08; 8:45 am]
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BILLING CODE 4830–01–P
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[EPA–R06–OAR–2007–0525; FRL–8726–3]
Approval and Promulgation of Air
Quality Implementation Plans; Texas;
Reasonable Further Progress Plan,
Motor Vehicle Emissions Budgets and
Revised 2002 Emissions Inventory;
Dallas/Fort Worth Ozone
Nonattainment Area
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
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58515
Agency views this as a noncontroversial
submittal and anticipates no adverse
comments. A detailed rationale for the
approval is set forth in the direct final
rule. If no relevant adverse comments
are received in response to this action,
no further activity is contemplated. If
EPA receives adverse comments, the
direct final rule will be withdrawn and
all public comments received will be
addressed in a subsequent final rule
based on this proposed rule. EPA will
not institute a second comment period.
Any parties interested in commenting
on this action should do so at this time.
Please note that if EPA receives adverse
comment on an amendment, paragraph,
or section of this rule and if that
provision may be severed from the
remainder of the rule, EPA may adopt
as final those provisions of the rule that
are not the subject of an adverse
comment.
For additional information, see the
direct final rule, which is located in the
rules section of this Federal Register.
Dated: September 26, 2008.
Richard E. Greene,
Regional Administrator, Region 6.
[FR Doc. E8–23674 Filed 10–6–08; 8:45 am]
BILLING CODE 6560–50–P
GENERAL SERVICES
ADMINISTRATION
48 CFR Parts 532 and 552
[GSAR Case 2006–G515; Docket 2008–0007;
Sequence 22]
RIN 3090–AI75
General Services Acquisition
Regulation; GSAR Case 2006–G515;
Rewrite of Part 532, Contract Financing
Office of the Chief Acquisition
Officer, General Services
Administration (GSA).
ACTION: Proposed rule.
AGENCY:
SUMMARY: The General Services
Administration (GSA) is proposing to
amend the General Services Acquisition
Regulation (GSAR) to revise and update
the agency’s implementation of Federal
Acquisition Regulation (FAR) contract
financing policies. GSA has taken this
opportunity to implement coverage for
incremental funding of fixed-price,
time-and-materials, and labor-hour
contracts.
Interested parties should submit
written comments to the Regulatory
Secretariat on or before November 6,
2008 to be considered in the
formulation of a final rule.
DATES:
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Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Proposed Rules
Submit comments
identified by GSAR Case 2006–G515 by
any of the following methods:
• Regulations.gov: https://
www.regulations.gov.
Submit comments via the Federal
eRulemaking portal by inputting ‘‘GSAR
Case 2006–G515’’ under the heading
‘‘Comment or Submission’’. Select the
link ‘‘Send a Comment or Submission’’
that corresponds with GSAR Case 2006–
G515. Follow the instructions provided
to complete the ‘‘Public Comment and
Submission Form’’. Please include your
name, company name (if any), and
‘‘GSAR Case 2006–G515’’ on your
attached document.
• Fax: 202–501–4067.
• Mail: General Services
Administration, Regulatory Secretariat
(VPR), 1800 F Street, NW., Room 4041,
ATTN: Laurieann Duarte, Washington,
DC 20405.
Instructions: Please submit comments
only and cite GSAR Case 2006–G515 in
all correspondence related to this case.
All comments received will be posted
without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided.
FOR FURTHER INFORMATION CONTACT: For
clarification of content, contact Ms.
Meredith Murphy at (202) 208–6925, or
by e-mail at meredith.murphy@gsa.gov.
For information pertaining to the status
or publication schedules, contact the
Regulatory Secretariat (VPR), Room
4041, GS Building, Washington, DC
20405, (202) 501–4755. Please cite
GSAR Case 2006–G515.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
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A. Background
This is part of the GSAM Rewrite
Project, which was initiated in 2006 to
revise, update, and simplify the GSAM.
An Advance Notice of Proposed
Rulemaking (ANPR), with a request for
comments, was published February 15,
2006. Three comments on Part 532 were
received in response and are discussed
below. Prior to publication of this
proposed rule, the draft coverage was
circulated within GSA to the Services
and regions. A total of 114 comments
were received from 17 commenters.
This proposed rule incorporates those
recommendations where appropriate.
The current GSAM Part 532 implements
nine of the FAR Part 32 subparts and
includes three supplementary subparts
and 17 clauses. The proposed rule
contains seven FAR Part 32
implementing subparts and two
supplementary subparts, retains four
clauses, and creates two new clauses. Of
the 13 clauses that are omitted from Part
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532, eight were moved to other parts of
the GSAM (five to Part 538, two to Part
570, and one to Part 512), one was
converted to FAR coverage, and four
were cancelled.
In Subpart 532.1, Non-Commercial
Item Purchase Financing, two of the
three clauses prescribed were cancelled
as redundant to the FAR and/or
Standard Form 26. The clause at
552.232–72 was renamed ‘‘Final
Payment Under Building Services
Contracts’’ and the prescription was
relocated to 532.904, ‘‘Determining
payment due dates.’’ There is no FAR
clause covering final payment for
service contracts. The GSA Form 2419,
Certification of Progress Payments
Under Fixed-Price Construction
Contracts, was made mandatory at the
request of the Office of General Counsel
and Office of Inspector General, and the
form’s prescription was moved to
Subpart 532.1. The certification
language in the GSA form was modified
to match the current required
certification language in the clause at
FAR 52.232–5(c).
The four clauses prescribed in
Subpart 532.2 are for Schedules only, so
Subpart 532.2 and clauses 552.232–8,
552.232–81, 552.232–82, and 552.232–
83 were deleted in their entirety.
Subpart 532.7, Contract Funding, has
been substantially revised to authorize
the use of incremental funding for fixedprice, time-and-materials, and laborhour contracts and provide a contract
clause, 552.232–7007, Limitation of
Government’s Obligation. The FAR
provides clauses for incremental
funding of cost-type contracts, but not
for the above contract types—although
the use of incremental funding for such
contracts is not prohibited by the FAR.
The clause at 552.232–73, Availability
of Funds, was cancelled because the use
of such contingency-type clauses is
inappropriate in circumstances other
than those authorized by the FAR.
Subpart 532.8 included procedures
for the contracting officer to follow
when an assignment of claims was
received under FAR 52.232–23,
Assignment of Claims. It also included
the prescription for GSAR 552.232–23,
Assignment of Claims. The clause was
used only for requirements or indefinite
quantity contracts under which more
than one agency could place orders. In
such cases, the GSAR clause is required
to be substituted for paragraph (a) of the
FAR clause at 52.232–23, thus limiting
the assignment of claims capability to
an individual order, rather than to the
contract as a whole. The GSAR
prescription and clause at 552.232–23
provided an important protection for
GSA, and one that should be available
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to other Government agencies that
award contracts used by more than one
agency and for the various Government
agencies that issue orders under such
contracts. Therefore, the clause is
removed from the GSAR and has been
proposed for inclusion in the FAR as
Alternate 1 to FAR 52.232–23.
In Subpart 532.9, the definition of
‘‘full cycle electronic commerce’’ was
deleted because the term is not used in
the GSAM text. It is used in paragraph
(a)(2) of the GSAR clause at 552.232–25
where the associated requirements are
fully described. GSA has an approved
deviation to use GSAR 552.232–25,
Prompt Payment, in lieu of FAR 52.232–
25, Prompt Payment. The effect of this
is to waive Prompt Payment Act
requirements for certain situations and
types of contracts to allow GSA to pay
its contractors more quickly than would
be the case under the Prompt Payment
Act. A related clause, GSAM 552.232–
74, Invoice Payments, is used only in
accordance with the FAR deviation to
reduce payment times for commercial
items when EFT is used (per FAR
52.232–33 instructions). Because this is
the only difference from normal
payment terms, the team determined
that it was not necessary to have a
separate clause that repeated much of
other clauses. For this reason, 552.232–
74 was converted to Alternate II of
GSAR 552.212.4, prescribed at
532.908(c)(2).
The FAR does not cover contracting
for leasehold interests, while the GSAM
has a separate part, Part 570, devoted to
the subject. Two clauses, GSAM
552.232–75 and 552.232–76, and their
associated clause prescriptions, have
been transferred to the Part 570 Review
Team because they apply only to
contracts for leasehold interests.
GSAR clause 552.232–78, Payment
Information, has no FAR equivalent. All
this GSAM clause does is direct
contractors to a GSA-unique site which
they can use to monitor the status of
their payments. It is not necessary to use
a clause to inform contractors of this
web site. The web site can be included
in section G, Contract Administration
Data, in the body of the contract itself.
This is the appropriate location for
information relating to contract
financing payments. The GSAR clause is
therefore deleted.
In Subpart 532.70, Authorizing
Payment of Governmentwide
Commercial Purchase Card, the
definition of ‘‘Governmentwide
commercial purchase card’’ was deleted
because it merely refers to the FAR
definition. Section 532.7002, which
contains the solicitation requirements
for use of the purchase card, and section
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532.7003, which prescribes the use of
the contract clause entitled Payment By
Governmentwide Commercial Purchase
Card, have been renumbered and edited,
as has the clause at 552.232–77.
Personnel in the Office of the Chief
Financial Officer (OCFO) provided
counsel on updated terminology and
recommended deletion of references to
‘‘the credit card clearing house.’’
Subpart 532.71 defines ‘‘fixed-roll
payments’’ and the circumstances in
which they may be used. Since the
implementation of Pegasys, GSA no
longer uses the fixed-roll payment
process; therefore, GSA has deleted
Subpart 532.71 in its entirety, as well as
the related clause, 552.232–71,
Adjusting Payments.
Only minor edits were made to
Subpart 532.72, Payments Under
Contracts Subject to Audit.
Three public comments on Part 532
were received in response to the
Advance Notice of Public Rulemaking.
Comment: Two commenters stated
that mandatory acceptance of
Governmentwide credit cards (see
GSAR 532.7003, 552.232–79, and clause
552.232–77) below the micro purchase
threshold was inconsistent with the
commercial practices for some Schedule
contractors and should be made
voluntary.
Response: The Governmentwide
charge card is a critical element in the
Government’s electronic funds transfer
system. FAR Part 13 directs Government
agencies to use the Governmentwide
credit card for purchases under the
micropurchase threshold. Over the
micropurchase threshold, contractors
may, or may not, accept the card.
Although GSA has changed portions of
these clauses, the commenter’s
suggestion was not accepted.
Comment: One commenter requested
that advanced payments be permitted
for commercial items in the schedule
program, stating ‘‘(t)here is no statutory
or regulatory prohibition from
application of advanced payments to the
MAS schedules.’’ The Federal
Acquisition Streamlining Act (FASA),
Section 41.255(f), permitted advanced
payment for commercial items at the
discretion of the contracting officer
when a series of conditions have been
met. These conditions are delineated in
FAR 32.202–1(b).
Response: The advance payments
permitted by FAR 32.202 are a
maximum of 15 percent of the contract
price. The GSAR does not prohibit the
types of advance payments authorized
by FAR Subpart 32.2. Advance
payments for services remain a violation
of GAO guidelines. No change was
made.
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Comment: One commenter
recommended that the GSAR be revised
to clarify that subcontractor labor hours
under a T&M contract are paid at the
rates established in the prime contract
or task order.
Response: This is not a GSA issue, but
rather an issue for the FAR. There is no
reason for GSA to have separate or
different coverage than other
Government agencies for this subject.
No change was made to the GSAM as a
result of this comment.
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.
2. Revise section 532.111 to read as
follows:
B. Regulatory Flexibility Act
532.705–1 Clauses for contracting in
advance of funds.
The General Services Administration
does not expect this proposed 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.,
because a number of contract clauses
and requirements are being eliminated
from the current regulation. An Initial
Regulatory Flexibility Analysis has,
therefore, not been performed. We invite
comments from small businesses and
other interested parties. GSA will
consider comments from small entities
concerning the affected GSAR Parts 532
and 552 in accordance with 5 U.S.C.
610. Interested parties must submit such
comments separately and should cite 5
U.S.C. 601, et seq. (GSAR case 2006–
G515), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act
applies; however, these changes to the
GSAR do not impose additional
information collection requirements to
the paperwork burden previously
approved under OMB Control Number
9000–0102.
List of Subjects in 48 CFR Parts 532 and
552
Dated: September 25, 2008.
Al Matera,
Director, Office of Acquisition Policy, General
Services Administration.
Therefore, GSA proposes to amend 48
CFR parts 532 and 552 as set forth
below:
PART 532—CONTRACT FINANCING
1. The authority citation for 48 CFR
part 532 continues to read as follows:
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For contracts that include the clause
at FAR 52.232–5, Payments Under
Fixed-Price Construction Contracts, the
contracting officer shall provide the
contractor with GSA Form 2419,
Certification of Progress Payments
Under Fixed-Price Construction
Contracts, to be used to make the
certification required by FAR 52.232–
5(c).
Subpart 532.2—[Removed]
3. Remove Subpart 532.2.
4. Revise section 532.705–1 to read as
follows:
(a) In most circumstances, contracting
officers should be able to use either—
(1) FAR 52.232–18, Availability of
Funds (i.e., for any contract type when
the funds will not be appropriated until
the next fiscal year); or
(2) FAR 52.232–19, Availability of
Funds for the Next Fiscal Year (i.e., for
a one-year ID/IQ or requirements
contract for services).
(b) Contracting officers may only use
552.232–73, Availability of Funds,
when all of the following conditions
apply:
(1) The acquisition is for severable
services.
(2) The contract, or a portion of the
contract, will be chargeable to funds of
the new fiscal year.
(3) The circumstances described in
the prescriptions for FAR 52.232–18 or
52.232–19 do not apply.
(c) Contracting officers may use the
clause at 552.232–7007, Limitation of
Government’s Obligation, or its
Alternate I, in clauses that are
incrementally funded.
Subpart 532.8—[Removed]
5. Remove subpart 532.8.
532.902
Government procurement.
Authority: 40 U.S.C. 121(c).
532.111 Contract clauses for noncommercial purchases.
[Removed]
6. Remove section 532.902.
7. Add section 532.904 to read as
follows:
532.904
Determining payment due dates.
Payment due dates for construction
contracts are addressed at FAR
32.904(d). The following procedures
apply to construction and building
service contracts:
(a) The final payment on construction
or building service contracts shall not be
processed until the contractor submits a
properly executed GSA Form 1142,
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Release of Claims. If, after repeated
attempts, a release of claims cannot be
obtained from the contractor, the
contracting officer may process the final
payment with the approval of assigned
legal counsel.
(b) The amount of final payment must
include, as appropriate, deductions to
cover any of the following:
(1) Liquidated damages for late
completion.
(2) Liquidated damages for labor
violations.
(3) Amounts withheld for improper
payment of labor wages.
(4) The amount of unilateral change
orders covering defects and omissions.
(5) The agreed-upon dollar amount in
a Deficiency Report, which is included
in all applicable Operation and
Maintenance (O&M) service contracts.
(c) When the contract is for the
performance of building services, the
contracting officer shall include the
clause at 552.232–72, Final Payment
Under Building Services Contracts.
8. Revise section 532.905 to read as
follows:
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532.905 Payment documentation and
process.
For contracts of the type shown in
532.7201(a)(1) through (4)—
(a) Contractors are to submit invoices
or vouchers concurrently to the Office of
the Chief Financial Officer and to the
contracting officer for approval. Invoices
must be annotated with the date of
receipt, as required by FAR 32.905. That
date will be used to determine interest
penalties for late payments. The
contracting officer or designee must
review the processing of invoices or
vouchers before payment to determine if
the items and amounts claimed are
consistent with the contract terms and
represent prudent business transactions.
The contracting officer must ensure that
these payments are commensurate with
physical and technical progress under
the contract. If the contractor has not
deducted questionable amounts from
the invoice or amounts required to be
withheld, the contracting officer must
make the required deduction, except as
provided in 532.7203. Subject to
532.7201, the contracting officer must
note approval of any payment on (or
attached to) the invoice or voucher
submitted by the contractor and forward
the invoice or voucher to the
appropriate contract finance office for
retention after certification and
scheduling for payment by a disbursing
office.
(b) See GSAM 532.7203 for the
handling of audit findings.
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532.905–70 and 532.905–71
[Removed]
9. Remove sections 532.905–70 and
532.905–71.
10. Revise section 532.908 to read as
follows:
532.908
Contract clauses.
(a) General and architect-engineer
contracts. Before exercising the
authority to modify the date for
constructive acceptance or constructive
approval of progress payments in the
clauses listed below, the contracting
officer must prepare a written
justification explaining why a longer
period is necessary. An official one level
above the contracting officer must
approve the justification. The time
needed should be determined on a caseby-case basis.
(1) In paragraph (a)(6)(i) of the clause
at FAR 52.232–25, Prompt Payment, the
specified constructive acceptance
period shall not exceed 30 days.
(2) In paragraph (a)(4)(i)(A) of the
clause at FAR 52.232–26, Prompt
Payment for Fixed-Price ArchitectEngineer Contracts, the specified
constructive acceptance period shall not
exceed 30 days.
(3) In paragraph (a)(4)(i)(B) of the
clause at FAR 52.232–26, Prompt
Payment for Fixed-Price ArchitectEngineer Contracts, the specified period
for constructive approval of progress
payments shall not exceed seven days.
(b) Construction contracts. (1) The
contracting officer shall determine on a
case-by-case basis the time specified for
payment of progress payments as
described in paragraph (a)(1)(i)(A) of the
clause at FAR 52.232–27, Prompt
Payment for Construction Contracts.
The contracting officer shall justify in
writing periods longer than 14 days. An
official one level above the contracting
officer must approve the justification.
Under no circumstances may more than
30 days be specified for payment of
progress payments.
(2) The contracting officer shall
determine the time to be specified in
paragraph (a)(4)(i) of FAR clause
52.232–27, for constructive acceptance
or approval, on a case-by-case basis.
This time may not exceed seven days
unless the contracting officer justifies in
writing a longer period and obtains the
approval of an official one level above
the contracting officer. Under no
circumstances may more than 30 days
be specified for constructive acceptance
or approval.
(c) Stock, Special Order, and
Schedules Programs. (1) GSA has
obtained a FAR Deviation to authorize
payment within 10 days of receipt of a
proper invoice. The authority applies
only to—
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(i) Orders placed by GSA under the
referenced programs;
(ii) That include FAR 52.232–33,
Mandatory Information for Electronic
Funds Transfer Payment, and;
(iii) For which the order is placed,
and the contractor submits invoices,
using EDI in accordance with the
Trading Partner Agreement.
(2) If the contract is for commercial
items and will include FAR 52.212–4,
use the clause with its Alternate II. If the
contract is not for commercial items, use
the clause at 552.232–25, Prompt
Payment, instead of FAR 52.232–25.
532.7001
[Removed]
11. Remove section 532.7001.
12. Revise section 532.7003 to read as
follows:
532.7003
Contract clause.
For indefinite-delivery, indefinitequantity (IDIQ) contracts other than
Schedules, insert the clause at 552.232–
77, Payment By Government Charge
Card, if the contract will provide for
payment by Government charge card as
an alternative method of payment for
orders. For Schedule contracts that
provide for payment using the
Government charge card, use the
clause(s) prescribed at Part 538.
Subpart 532.71—[Removed]
13. Remove Subpart 532.71.
PART 552—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
14. The authority citation for 48 CFR
part 552 continues to read as follows:
Authority: 40 U.S.C. 121(c).
15. Add section 552.212–4 to read as
follows:
552.212–4 Contract Terms and
Conditions—Commercial Items.
Alternate II (FAR Deviation) (DATE).
When a commercial item contract is
contemplated and the contract will
include the clause at FAR 52.212–4,
insert this Alternate II instead of
paragraph (g)(2) of the FAR clause.
(g)(2) The due date for making invoice
payments by the designated payment
office is the later of the following two
events:
(i) The 10th day after the designated
billing office receives a proper invoice
from the Contractor. If the designated
billing office fails to annotate the
invoice with the date of receipt at the
time of receipt, the invoice payment due
date shall be the 10th day after the date
of the Contractor’s invoice; provided the
Contractor submitted a proper invoice
and no disagreement exists over
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quantity, quality, or Contractor
compliance with contract requirements.
(ii) The 10th day after Government
acceptance of supplies delivered or
services performed by the Contractor.
16. Amend section 552.232–1 by
revising the date of the clause and
paragraph (c) to read as follows:
552.232–1
Payments.
*
*
*
*
*
PAYMENTS (DATE) (DEVIATION
FAR 52.232—1)
*
*
*
*
*
(c) When processing payment, GSA’s
Finance Office will automatically
generate the 12 digit invoice number
using the PDN assigned to the contract,
followed by an abbreviated month and
year of service (e.g., 84261554JUN7, for
June 2007). The PDN appears on the
contract award document.
(End of clause)
552.232–8 and 552.232–23
[Removed]
17. Remove sections 552.232–8 and
552.232–23.
552.232–25
Prompt Payment.
18. Amend section 552.232–25 by
removing from the introductory text of
the prescription ‘‘532.908(a)(2)’’ and
adding ‘‘532.908(c)(2)’’ in its place;
revising the date of the clause to read
‘‘(Date)’’; and removing from paragraph
(a)(1)(i) ‘‘Supply Service (FSS)’’ and
adding ‘‘Acquisition Service (FAS)’’ in
its place.
552.232–70 and 552.232–71
[Removed]
19. Remove sections 552.232–70 and
552.232–71.
20. Amend section 552.232–72 by
revising the section heading, the
introductory text of the prescription,
and the heading and date of the clause
to read as follows:
552.232–72 Final Payment Under Building
Services Contracts.
As prescribed in 532.904(c), insert the
following clause:
FINAL PAYMENT UNDER BUILDING
SERVICES CONTRACTS (DATE)
*
*
*
*
*
552.232–74 through 552.232–76
[Removed]
pwalker on PROD1PC71 with PROPOSALS
21. Remove sections 552.232–74
through 552.232–76.
22. Revise section 552.232–77 to read
as follows:
552.232–77 Payment By Government
Charge Card.
As prescribed in 532.7003, insert the
following clause:
PAYMENT BY GOVERNMENT CHARGE
CARD (DATE)
(a) Definitions.
VerDate Aug<31>2005
16:26 Oct 06, 2008
Jkt 217001
Governmentwide commercial
purchase card means a uniquely
numbered charge card issued by a
contractor under the GSA
SmartPayprogram contract for Fleet,
Travel, and Purchase Card Services to
named individual Government
employees or entities to pay for official
Government purchases.
Oral order means an order placed
orally either in person or by telephone.
(b) At the option of the Government
and if agreeable to the Contractor,
payments of ll *ll or less for oral
or written orders may be made using the
Governmentwide commercial purchase
card.
(c) The Contractor shall not process a
transaction for payment using the
charge card until the purchased
supplies have been shipped or services
performed. Unless the cardholder
requests correction or replacement of a
defective or faulty item under other
contract requirements, the Contractor
must immediately credit a cardholder’s
account for items returned as defective
or faulty.
(d) Payments made using the
Governmentwide commercial purchase
card are not eligible for any negotiated
prompt payment discount. Payment
made using a Government debit card
will receive the applicable prompt
payment discount.
(End of clause)
* Enter amount not to exceed
$100,000.
552.232–78 through 552.232–83
[Removed]
23. Remove sections 552.232–78
through 552.232–83.
24. Add section 552.232–7007 to read
as follows:
552.232–7007
Obligation.
Limitation of Government’s
As prescribed in 532.705–1(c), use the
following clause:
LIMITATION OF GOVERNMENT’S
OBLIGATION (DATE)
(a) Contract line item(s) ll*ll
through ll*ll are incrementally
funded. For these item(s), the sum of
$ll*ll of the total price is presently
available for payment and allotted to
this contract. An allotment schedule is
set forth in paragraph (j) of this clause.
(b) For item(s) identified in paragraph
(a) of this clause, the Contractor agrees
to perform up to the point at which the
total amount payable by the
Government, including reimbursement
in the event of termination of those
item(s) for the Government’s
convenience, approximates, but does
not exceed, the total amount currently
allotted to the contract. The Contractor
PO 00000
Frm 00014
Fmt 4702
Sfmt 4702
58519
is not authorized to continue work on
those item(s) beyond that point. The
Government will not be obligated in any
event to reimburse the Contractor in
excess of the amount allotted to the
contract for those item(s) regardless of
anything to the contrary in the clause
entitled ‘‘Termination for Convenience
of the Government’’ or paragraph (l)
entitled ‘‘Termination for the
Government’s Convenience’’ of the
clause at FAR 52.212–4, ‘‘Commercial
Terms and Conditions-Commercial
Items.’’ As used in this clause, the total
amount payable by the Government in
the event of termination of applicable
contract line item(s) for convenience
includes costs, profit, and estimated
termination settlement costs for those
item(s).
(c) Notwithstanding the dates
specified in the allotment schedule in
paragraph (j) of this clause, the
Contractor will notify the Contracting
Officer in writing at least 90 days prior
to the date when, in the Contractor’s
best judgment, the work will reach the
point at which the total amount payable
by the Government, including any cost
for termination for convenience, will
approximate 85 percent of the total
amount then allotted to the contract for
performance of the applicable item(s).
The notification will state: (1) the
estimated date when that point will be
reached; and (2) an estimate of
additional funding, if any, needed to
continue performance of applicable line
items up to the next scheduled date for
allotment of funds identified in
paragraph (j) of this clause, or to a
mutually agreed upon substitute date.
The notification will also advise the
Contracting Officer of the estimated
amount of additional funds that will be
required for the timely performance of
the item(s) funded pursuant to this
clause, for a subsequent period as may
be specified in the allotment schedule
in paragraph (j) of this clause or
otherwise agreed to by the parties. If
after such notification additional funds
are not allotted by the date identified in
the Contractor’s notification, or by an
agreed substitute date, the Contracting
Officer will terminate any item(s) for
which additional funds have not been
allotted, pursuant to the clause of this
contract entitled ‘‘Termination for
Convenience of the Government’’ or
paragraph (l) entitled ‘‘Termination for
the Government’s Convenience’’ of the
clause at FAR 52.212–4, ‘‘Commercial
Terms and Conditions-Commercial
Items.’’
(d) When additional funds are allotted
for continued performance of the
contract line item(s) identified in
paragraph (a) of this clause, the parties
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07OCP1
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58520
Federal Register / Vol. 73, No. 195 / Tuesday, October 7, 2008 / Proposed Rules
will agree as to the period of contract
performance which will be covered by
the funds. The provisions of paragraphs
(b) through (d) of this clause will apply
in like manner to the additional allotted
funds and agreed substitute date, and
the contract will be modified
accordingly.
(e) If, solely by reason of failure of the
Government to allot additional funds,
by the dates indicated below, in
amounts sufficient for timely
performance of the contract line item(s)
identified in paragraph (a) of this clause,
the Contractor incurs additional costs or
is delayed in the performance of the
work under this contract and if
additional funds are allotted, an
equitable adjustment will be made in
the price or prices (including
appropriate target, billing, and ceiling
prices where applicable) of the item(s),
or in the time of delivery, or both.
Failure to agree to any such equitable
adjustment hereunder will be a dispute
concerning a question of fact within the
meaning of the clause entitled
‘‘Disputes.’’
(f) The Government may at any time
prior to termination allot additional
funds for the performance of the
contract line item(s) identified in
paragraph (a) of this clause.
(g) The termination provisions of this
clause do not limit the rights of the
Government under the clause entitled
‘‘Default’’ or ‘‘Termination for Cause.’’
The provisions of this clause are limited
to the work and allotment of funds for
the contract line item(s) set forth in
paragraph (a) of this clause. This clause
no longer applies once the contract is
fully funded except with regard to the
rights or obligations of the parties
concerning equitable adjustments
negotiated under paragraphs (d) and (e)
of this clause.
(h) Nothing in this clause affects the
right of the Government to terminate
this contract pursuant to the clause of
this contract entitled ‘‘Termination for
Convenience of the Government’’ or
paragraph (l) entitled ‘‘Termination for
the Government’s Convenience’’ of the
clause at FAR 52.212–4, ‘‘Commercial
Terms and Conditions-Commercial
Items.’’
(i) Nothing in this clause shall be
construed as authorization of voluntary
services whose acceptance is otherwise
prohibited under 31 U.S.C. 1342.
(j) The parties contemplate that the
Government will allot funds to this
contract in accordance with the
following schedule:
On execution of contract $ ll
(month) (day), (year) $ ll
(month) (day), (year) $ ll
(month) (day), (year) $ ll
VerDate Aug<31>2005
16:26 Oct 06, 2008
Jkt 217001
(End of clause)
ALTERNATE I (DATE). If only a
certain line item(s) will be
incrementally funded, substitute the
following paragraph (a) for paragraph (a)
of the basic clause:
(a) Contract line item(s) ll is
incrementally funded. The sum of
$ll*ll is presently available for
payment and allotted to this contract.
An allotment schedule is contained in
paragraph (j) of this clause.
* To be inserted after negotiation.
[FR Doc. E8–23660 Filed 10–6–08; 8:45 am]
BILLING CODE 6820–EP–S
NATIONAL TRANSPORTATION
SAFETY BOARD
49 CFR Part 830
Notification and Reporting of Aircraft
Accidents or Incidents and Overdue
Aircraft, and Preservation of Aircraft
Wreckage, Mail, Cargo, and Records
National Transportation Safety
Board (NTSB).
ACTION: Notice of proposed rulemaking.
AGENCY:
SUMMARY: The NTSB is proposing to
amend its regulations concerning
notification and reporting requirements
with regard to aircraft accidents or
incidents. The existing regulations (49
CFR 830.5) do not include certain
events that the NTSB has determined to
be necessary. The NTSB anticipates that
these proposed amendments will
enhance aviation safety by providing the
NTSB with direct notification of events
that involve safety concerns, thereby
enabling the NTSB to conduct
investigations, identify necessary
corrective actions in a timely manner,
and work to prevent transportation
accidents.
DATES: Submit comments on or before
December 8, 2008.
ADDRESSES: You may send comments
using any of the following methods:
1. Government-wide rulemaking Web
site: Go to https://www.regulations.gov
and follow the instructions for sending
your comments electronically.
2. Mail: Mail comments concerning
this proposed rule to Deepak Joshi, AS–
40, National Transportation Safety
Board, 490 L’Enfant Plaza, SW.,
Washington, DC 20594–2000.
3. Fax: (202) 314–6308, Attention:
Deepak Joshi
4. Hand Delivery: 6th Floor, 490
L’Enfant Plaza, SW., Washington, DC,
between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Deepak Joshi, Lead Aerospace Engineer
PO 00000
Frm 00015
Fmt 4702
Sfmt 4702
(Structures), Office of Aviation Safety,
(202) 314–6348.
SUPPLEMENTARY INFORMATION:
Regulatory History
On December 27, 2004, the NTSB
published a notice of proposed
rulemaking (NPRM) titled, ‘‘Notification
and Reporting of Aircraft Accidents or
Incidents and Overdue Aircraft, and
Preservation of Aircraft Wreckage, Mail,
Cargo, and Records,’’ in the Federal
Register (69 FR 77150). The December
2004 NPRM proposed various changes
to 49 CFR Part 830, all of which affected
the types of accidents and incidents that
individuals and entities must report
under 49 CFR Part 830. The NTSB
received numerous comments on the
NPRM and carefully considered each
comment. In light of some commenters’
suggestions and concerns, and to ensure
that the NTSB engages in all requisite
statutory and regulatory analyses, the
NTSB elected to revise the proposed
regulations and issue a new NPRM. The
NTSB has declined to implement some
commenters’ suggestions in some
proposed sections, and the preamble for
each proposed section explains the
NTSB’s reasoning. Each proposed
revision and addition, as well as
summaries of and responses to some
comments from the prior NPRM, is
discussed in detail below. The NTSB
does not plan to issue a final notice or
proceed in any way with the NPRM that
was published on December 27, 2004.
The NTSB intends to finalize and
proceed with the NPRM herein.
Statutory and Regulatory Evaluation
This proposed rule would amend the
requirements for providing immediate
notification to the NTSB of certain
aviation events, to include certain
events that were not previously
reportable. These amendments will
enhance aviation safety by providing the
NTSB with direct notification of these
events and, thereby enabling the NTSB
to conduct investigations, identify
corrective actions, and propose safety
recommendations in a timely manner.
This rule is not a ‘‘significant
regulatory action’’ under section 3(f) of
Executive Order 12866, Regulatory
Planning and Review, and does not
require an assessment of the potential
costs and benefits under section 6(a)(3)
of that Order. As such, the Office of
Management and Budget (OMB) has not
reviewed this rule under Executive
Order 12866. Likewise, this rule does
not require an analysis under the
Unfunded Mandates Reform Act, 2
United States Code (U.S.C.) 1501–1571,
or the National Environmental Policy
Act, 42 U.S.C. 4321–4347.
E:\FR\FM\07OCP1.SGM
07OCP1
]]>Agencies
[Federal Register Volume 73, Number 195 (Tuesday, October 7, 2008)]
[Proposed Rules]
[Pages 58515-58520]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-23660]
=======================================================================
-----------------------------------------------------------------------
GENERAL SERVICES ADMINISTRATION
48 CFR Parts 532 and 552
[GSAR Case 2006-G515; Docket 2008-0007; Sequence 22]
RIN 3090-AI75
General Services Acquisition Regulation; GSAR Case 2006-G515;
Rewrite of Part 532, Contract Financing
AGENCY: Office of the Chief Acquisition Officer, General Services
Administration (GSA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The General Services Administration (GSA) is proposing to
amend the General Services Acquisition Regulation (GSAR) to revise and
update the agency's implementation of Federal Acquisition Regulation
(FAR) contract financing policies. GSA has taken this opportunity to
implement coverage for incremental funding of fixed-price, time-and-
materials, and labor-hour contracts.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat on or before November 6, 2008 to be considered
in the formulation of a final rule.
[[Page 58516]]
ADDRESSES: Submit comments identified by GSAR Case 2006-G515 by any of
the following methods:
Regulations.gov: https://www.regulations.gov.
Submit comments via the Federal eRulemaking portal by inputting
``GSAR Case 2006-G515'' under the heading ``Comment or Submission''.
Select the link ``Send a Comment or Submission'' that corresponds with
GSAR Case 2006-G515. Follow the instructions provided to complete the
``Public Comment and Submission Form''. Please include your name,
company name (if any), and ``GSAR Case 2006-G515'' on your attached
document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (VPR), 1800 F Street, NW., Room 4041, ATTN: Laurieann
Duarte, Washington, DC 20405.
Instructions: Please submit comments only and cite GSAR Case 2006-
G515 in all correspondence related to this case. All comments received
will be posted without change to https://www.regulations.gov, including
any personal and/or business confidential information provided.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Meredith Murphy at (202) 208-6925, or by e-mail at
meredith.murphy@gsa.gov. For information pertaining to the status or
publication schedules, contact the Regulatory Secretariat (VPR), Room
4041, GS Building, Washington, DC 20405, (202) 501-4755. Please cite
GSAR Case 2006-G515.
SUPPLEMENTARY INFORMATION:
A. Background
This is part of the GSAM Rewrite Project, which was initiated in
2006 to revise, update, and simplify the GSAM. An Advance Notice of
Proposed Rulemaking (ANPR), with a request for comments, was published
February 15, 2006. Three comments on Part 532 were received in response
and are discussed below. Prior to publication of this proposed rule,
the draft coverage was circulated within GSA to the Services and
regions. A total of 114 comments were received from 17 commenters. This
proposed rule incorporates those recommendations where appropriate. The
current GSAM Part 532 implements nine of the FAR Part 32 subparts and
includes three supplementary subparts and 17 clauses. The proposed rule
contains seven FAR Part 32 implementing subparts and two supplementary
subparts, retains four clauses, and creates two new clauses. Of the 13
clauses that are omitted from Part 532, eight were moved to other parts
of the GSAM (five to Part 538, two to Part 570, and one to Part 512),
one was converted to FAR coverage, and four were cancelled.
In Subpart 532.1, Non-Commercial Item Purchase Financing, two of
the three clauses prescribed were cancelled as redundant to the FAR
and/or Standard Form 26. The clause at 552.232-72 was renamed ``Final
Payment Under Building Services Contracts'' and the prescription was
relocated to 532.904, ``Determining payment due dates.'' There is no
FAR clause covering final payment for service contracts. The GSA Form
2419, Certification of Progress Payments Under Fixed-Price Construction
Contracts, was made mandatory at the request of the Office of General
Counsel and Office of Inspector General, and the form's prescription
was moved to Subpart 532.1. The certification language in the GSA form
was modified to match the current required certification language in
the clause at FAR 52.232-5(c).
The four clauses prescribed in Subpart 532.2 are for Schedules
only, so Subpart 532.2 and clauses 552.232-8, 552.232-81, 552.232-82,
and 552.232-83 were deleted in their entirety.
Subpart 532.7, Contract Funding, has been substantially revised to
authorize the use of incremental funding for fixed-price, time-and-
materials, and labor-hour contracts and provide a contract clause,
552.232-7007, Limitation of Government's Obligation. The FAR provides
clauses for incremental funding of cost-type contracts, but not for the
above contract types--although the use of incremental funding for such
contracts is not prohibited by the FAR. The clause at 552.232-73,
Availability of Funds, was cancelled because the use of such
contingency-type clauses is inappropriate in circumstances other than
those authorized by the FAR.
Subpart 532.8 included procedures for the contracting officer to
follow when an assignment of claims was received under FAR 52.232-23,
Assignment of Claims. It also included the prescription for GSAR
552.232-23, Assignment of Claims. The clause was used only for
requirements or indefinite quantity contracts under which more than one
agency could place orders. In such cases, the GSAR clause is required
to be substituted for paragraph (a) of the FAR clause at 52.232-23,
thus limiting the assignment of claims capability to an individual
order, rather than to the contract as a whole. The GSAR prescription
and clause at 552.232-23 provided an important protection for GSA, and
one that should be available to other Government agencies that award
contracts used by more than one agency and for the various Government
agencies that issue orders under such contracts. Therefore, the clause
is removed from the GSAR and has been proposed for inclusion in the FAR
as Alternate 1 to FAR 52.232-23.
In Subpart 532.9, the definition of ``full cycle electronic
commerce'' was deleted because the term is not used in the GSAM text.
It is used in paragraph (a)(2) of the GSAR clause at 552.232-25 where
the associated requirements are fully described. GSA has an approved
deviation to use GSAR 552.232-25, Prompt Payment, in lieu of FAR
52.232-25, Prompt Payment. The effect of this is to waive Prompt
Payment Act requirements for certain situations and types of contracts
to allow GSA to pay its contractors more quickly than would be the case
under the Prompt Payment Act. A related clause, GSAM 552.232-74,
Invoice Payments, is used only in accordance with the FAR deviation to
reduce payment times for commercial items when EFT is used (per FAR
52.232-33 instructions). Because this is the only difference from
normal payment terms, the team determined that it was not necessary to
have a separate clause that repeated much of other clauses. For this
reason, 552.232-74 was converted to Alternate II of GSAR 552.212.4,
prescribed at 532.908(c)(2).
The FAR does not cover contracting for leasehold interests, while
the GSAM has a separate part, Part 570, devoted to the subject. Two
clauses, GSAM 552.232-75 and 552.232-76, and their associated clause
prescriptions, have been transferred to the Part 570 Review Team
because they apply only to contracts for leasehold interests.
GSAR clause 552.232-78, Payment Information, has no FAR equivalent.
All this GSAM clause does is direct contractors to a GSA-unique site
which they can use to monitor the status of their payments. It is not
necessary to use a clause to inform contractors of this web site. The
web site can be included in section G, Contract Administration Data, in
the body of the contract itself. This is the appropriate location for
information relating to contract financing payments. The GSAR clause is
therefore deleted.
In Subpart 532.70, Authorizing Payment of Governmentwide Commercial
Purchase Card, the definition of ``Governmentwide commercial purchase
card'' was deleted because it merely refers to the FAR definition.
Section 532.7002, which contains the solicitation requirements for use
of the purchase card, and section
[[Page 58517]]
532.7003, which prescribes the use of the contract clause entitled
Payment By Governmentwide Commercial Purchase Card, have been
renumbered and edited, as has the clause at 552.232-77. Personnel in
the Office of the Chief Financial Officer (OCFO) provided counsel on
updated terminology and recommended deletion of references to ``the
credit card clearing house.''
Subpart 532.71 defines ``fixed-roll payments'' and the
circumstances in which they may be used. Since the implementation of
Pegasys, GSA no longer uses the fixed-roll payment process; therefore,
GSA has deleted Subpart 532.71 in its entirety, as well as the related
clause, 552.232-71, Adjusting Payments.
Only minor edits were made to Subpart 532.72, Payments Under
Contracts Subject to Audit.
Three public comments on Part 532 were received in response to the
Advance Notice of Public Rulemaking.
Comment: Two commenters stated that mandatory acceptance of
Governmentwide credit cards (see GSAR 532.7003, 552.232-79, and clause
552.232-77) below the micro purchase threshold was inconsistent with
the commercial practices for some Schedule contractors and should be
made voluntary.
Response: The Governmentwide charge card is a critical element in
the Government's electronic funds transfer system. FAR Part 13 directs
Government agencies to use the Governmentwide credit card for purchases
under the micropurchase threshold. Over the micropurchase threshold,
contractors may, or may not, accept the card. Although GSA has changed
portions of these clauses, the commenter's suggestion was not accepted.
Comment: One commenter requested that advanced payments be
permitted for commercial items in the schedule program, stating
``(t)here is no statutory or regulatory prohibition from application of
advanced payments to the MAS schedules.'' The Federal Acquisition
Streamlining Act (FASA), Section 41.255(f), permitted advanced payment
for commercial items at the discretion of the contracting officer when
a series of conditions have been met. These conditions are delineated
in FAR 32.202-1(b).
Response: The advance payments permitted by FAR 32.202 are a
maximum of 15 percent of the contract price. The GSAR does not prohibit
the types of advance payments authorized by FAR Subpart 32.2. Advance
payments for services remain a violation of GAO guidelines. No change
was made.
Comment: One commenter recommended that the GSAR be revised to
clarify that subcontractor labor hours under a T&M contract are paid at
the rates established in the prime contract or task order.
Response: This is not a GSA issue, but rather an issue for the FAR.
There is no reason for GSA to have separate or different coverage than
other Government agencies for this subject. No change was made to the
GSAM as a result of this comment.
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 General Services Administration does not expect this proposed
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., because a number of contract clauses and
requirements are being eliminated from the current regulation. An
Initial Regulatory Flexibility Analysis has, therefore, not been
performed. We invite comments from small businesses and other
interested parties. GSA will consider comments from small entities
concerning the affected GSAR Parts 532 and 552 in accordance with 5
U.S.C. 610. Interested parties must submit such comments separately and
should cite 5 U.S.C. 601, et seq. (GSAR case 2006-G515), in
correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act applies; however, these changes to the
GSAR do not impose additional information collection requirements to
the paperwork burden previously approved under OMB Control Number 9000-
0102.
List of Subjects in 48 CFR Parts 532 and 552
Government procurement.
Dated: September 25, 2008.
Al Matera,
Director, Office of Acquisition Policy, General Services
Administration.
Therefore, GSA proposes to amend 48 CFR parts 532 and 552 as set
forth below:
PART 532--CONTRACT FINANCING
1. The authority citation for 48 CFR part 532 continues to read as
follows:
Authority: 40 U.S.C. 121(c).
2. Revise section 532.111 to read as follows:
532.111 Contract clauses for non-commercial purchases.
For contracts that include the clause at FAR 52.232-5, Payments
Under Fixed-Price Construction Contracts, the contracting officer shall
provide the contractor with GSA Form 2419, Certification of Progress
Payments Under Fixed-Price Construction Contracts, to be used to make
the certification required by FAR 52.232-5(c).
Subpart 532.2--[Removed]
3. Remove Subpart 532.2.
4. Revise section 532.705-1 to read as follows:
532.705-1 Clauses for contracting in advance of funds.
(a) In most circumstances, contracting officers should be able to
use either--
(1) FAR 52.232-18, Availability of Funds (i.e., for any contract
type when the funds will not be appropriated until the next fiscal
year); or
(2) FAR 52.232-19, Availability of Funds for the Next Fiscal Year
(i.e., for a one-year ID/IQ or requirements contract for services).
(b) Contracting officers may only use 552.232-73, Availability of
Funds, when all of the following conditions apply:
(1) The acquisition is for severable services.
(2) The contract, or a portion of the contract, will be chargeable
to funds of the new fiscal year.
(3) The circumstances described in the prescriptions for FAR
52.232-18 or 52.232-19 do not apply.
(c) Contracting officers may use the clause at 552.232-7007,
Limitation of Government's Obligation, or its Alternate I, in clauses
that are incrementally funded.
Subpart 532.8--[Removed]
5. Remove subpart 532.8.
532.902 [Removed]
6. Remove section 532.902.
7. Add section 532.904 to read as follows:
532.904 Determining payment due dates.
Payment due dates for construction contracts are addressed at FAR
32.904(d). The following procedures apply to construction and building
service contracts:
(a) The final payment on construction or building service contracts
shall not be processed until the contractor submits a properly executed
GSA Form 1142,
[[Page 58518]]
Release of Claims. If, after repeated attempts, a release of claims
cannot be obtained from the contractor, the contracting officer may
process the final payment with the approval of assigned legal counsel.
(b) The amount of final payment must include, as appropriate,
deductions to cover any of the following:
(1) Liquidated damages for late completion.
(2) Liquidated damages for labor violations.
(3) Amounts withheld for improper payment of labor wages.
(4) The amount of unilateral change orders covering defects and
omissions.
(5) The agreed-upon dollar amount in a Deficiency Report, which is
included in all applicable Operation and Maintenance (O&M) service
contracts.
(c) When the contract is for the performance of building services,
the contracting officer shall include the clause at 552.232-72, Final
Payment Under Building Services Contracts.
8. Revise section 532.905 to read as follows:
532.905 Payment documentation and process.
For contracts of the type shown in 532.7201(a)(1) through (4)--
(a) Contractors are to submit invoices or vouchers concurrently to
the Office of the Chief Financial Officer and to the contracting
officer for approval. Invoices must be annotated with the date of
receipt, as required by FAR 32.905. That date will be used to determine
interest penalties for late payments. The contracting officer or
designee must review the processing of invoices or vouchers before
payment to determine if the items and amounts claimed are consistent
with the contract terms and represent prudent business transactions.
The contracting officer must ensure that these payments are
commensurate with physical and technical progress under the contract.
If the contractor has not deducted questionable amounts from the
invoice or amounts required to be withheld, the contracting officer
must make the required deduction, except as provided in 532.7203.
Subject to 532.7201, the contracting officer must note approval of any
payment on (or attached to) the invoice or voucher submitted by the
contractor and forward the invoice or voucher to the appropriate
contract finance office for retention after certification and
scheduling for payment by a disbursing office.
(b) See GSAM 532.7203 for the handling of audit findings.
532.905-70 and 532.905-71 [Removed]
9. Remove sections 532.905-70 and 532.905-71.
10. Revise section 532.908 to read as follows:
532.908 Contract clauses.
(a) General and architect-engineer contracts. Before exercising the
authority to modify the date for constructive acceptance or
constructive approval of progress payments in the clauses listed below,
the contracting officer must prepare a written justification explaining
why a longer period is necessary. An official one level above the
contracting officer must approve the justification. The time needed
should be determined on a case-by-case basis.
(1) In paragraph (a)(6)(i) of the clause at FAR 52.232-25, Prompt
Payment, the specified constructive acceptance period shall not exceed
30 days.
(2) In paragraph (a)(4)(i)(A) of the clause at FAR 52.232-26,
Prompt Payment for Fixed-Price Architect-Engineer Contracts, the
specified constructive acceptance period shall not exceed 30 days.
(3) In paragraph (a)(4)(i)(B) of the clause at FAR 52.232-26,
Prompt Payment for Fixed-Price Architect-Engineer Contracts, the
specified period for constructive approval of progress payments shall
not exceed seven days.
(b) Construction contracts. (1) The contracting officer shall
determine on a case-by-case basis the time specified for payment of
progress payments as described in paragraph (a)(1)(i)(A) of the clause
at FAR 52.232-27, Prompt Payment for Construction Contracts. The
contracting officer shall justify in writing periods longer than 14
days. An official one level above the contracting officer must approve
the justification. Under no circumstances may more than 30 days be
specified for payment of progress payments.
(2) The contracting officer shall determine the time to be
specified in paragraph (a)(4)(i) of FAR clause 52.232-27, for
constructive acceptance or approval, on a case-by-case basis. This time
may not exceed seven days unless the contracting officer justifies in
writing a longer period and obtains the approval of an official one
level above the contracting officer. Under no circumstances may more
than 30 days be specified for constructive acceptance or approval.
(c) Stock, Special Order, and Schedules Programs. (1) GSA has
obtained a FAR Deviation to authorize payment within 10 days of receipt
of a proper invoice. The authority applies only to--
(i) Orders placed by GSA under the referenced programs;
(ii) That include FAR 52.232-33, Mandatory Information for
Electronic Funds Transfer Payment, and;
(iii) For which the order is placed, and the contractor submits
invoices, using EDI in accordance with the Trading Partner Agreement.
(2) If the contract is for commercial items and will include FAR
52.212-4, use the clause with its Alternate II. If the contract is not
for commercial items, use the clause at 552.232-25, Prompt Payment,
instead of FAR 52.232-25.
532.7001 [Removed]
11. Remove section 532.7001.
12. Revise section 532.7003 to read as follows:
532.7003 Contract clause.
For indefinite-delivery, indefinite-quantity (IDIQ) contracts other
than Schedules, insert the clause at 552.232-77, Payment By Government
Charge Card, if the contract will provide for payment by Government
charge card as an alternative method of payment for orders. For
Schedule contracts that provide for payment using the Government charge
card, use the clause(s) prescribed at Part 538.
Subpart 532.71--[Removed]
13. Remove Subpart 532.71.
PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
14. The authority citation for 48 CFR part 552 continues to read as
follows:
Authority: 40 U.S.C. 121(c).
15. Add section 552.212-4 to read as follows:
552.212-4 Contract Terms and Conditions--Commercial Items.
Alternate II (FAR Deviation) (DATE). When a commercial item
contract is contemplated and the contract will include the clause at
FAR 52.212-4, insert this Alternate II instead of paragraph (g)(2) of
the FAR clause.
(g)(2) The due date for making invoice payments by the designated
payment office is the later of the following two events:
(i) The 10th day after the designated billing office receives a
proper invoice from the Contractor. If the designated billing office
fails to annotate the invoice with the date of receipt at the time of
receipt, the invoice payment due date shall be the 10th day after the
date of the Contractor's invoice; provided the Contractor submitted a
proper invoice and no disagreement exists over
[[Page 58519]]
quantity, quality, or Contractor compliance with contract requirements.
(ii) The 10th day after Government acceptance of supplies delivered
or services performed by the Contractor.
16. Amend section 552.232-1 by revising the date of the clause and
paragraph (c) to read as follows:
552.232-1 Payments.
* * * * *
PAYMENTS (DATE) (DEVIATION FAR 52.232--1)
* * * * *
(c) When processing payment, GSA's Finance Office will
automatically generate the 12 digit invoice number using the PDN
assigned to the contract, followed by an abbreviated month and year of
service (e.g., 84261554JUN7, for June 2007). The PDN appears on the
contract award document.
(End of clause)
552.232-8 and 552.232-23 [Removed]
17. Remove sections 552.232-8 and 552.232-23.
552.232-25 Prompt Payment.
18. Amend section 552.232-25 by removing from the introductory text
of the prescription ``532.908(a)(2)'' and adding ``532.908(c)(2)'' in
its place; revising the date of the clause to read ``(Date)''; and
removing from paragraph (a)(1)(i) ``Supply Service (FSS)'' and adding
``Acquisition Service (FAS)'' in its place.
552.232-70 and 552.232-71 [Removed]
19. Remove sections 552.232-70 and 552.232-71.
20. Amend section 552.232-72 by revising the section heading, the
introductory text of the prescription, and the heading and date of the
clause to read as follows:
552.232-72 Final Payment Under Building Services Contracts.
As prescribed in 532.904(c), insert the following clause:
FINAL PAYMENT UNDER BUILDING SERVICES CONTRACTS (DATE)
* * * * *
552.232-74 through 552.232-76 [Removed]
21. Remove sections 552.232-74 through 552.232-76.
22. Revise section 552.232-77 to read as follows:
552.232-77 Payment By Government Charge Card.
As prescribed in 532.7003, insert the following clause:
PAYMENT BY GOVERNMENT CHARGE CARD (DATE)
(a) Definitions.
Governmentwide commercial purchase card means a uniquely numbered
charge card issued by a contractor under the GSA SmartPay[reg]program
contract for Fleet, Travel, and Purchase Card Services to named
individual Government employees or entities to pay for official
Government purchases.
Oral order means an order placed orally either in person or by
telephone.
(b) At the option of the Government and if agreeable to the
Contractor, payments of ---- *---- or less for oral or written orders
may be made using the Governmentwide commercial purchase card.
(c) The Contractor shall not process a transaction for payment
using the charge card until the purchased supplies have been shipped or
services performed. Unless the cardholder requests correction or
replacement of a defective or faulty item under other contract
requirements, the Contractor must immediately credit a cardholder's
account for items returned as defective or faulty.
(d) Payments made using the Governmentwide commercial purchase card
are not eligible for any negotiated prompt payment discount. Payment
made using a Government debit card will receive the applicable prompt
payment discount.
(End of clause)
* Enter amount not to exceed $100,000.
552.232-78 through 552.232-83 [Removed]
23. Remove sections 552.232-78 through 552.232-83.
24. Add section 552.232-7007 to read as follows:
552.232-7007 Limitation of Government's Obligation.
As prescribed in 532.705-1(c), use the following clause:
LIMITATION OF GOVERNMENT'S OBLIGATION (DATE)
(a) Contract line item(s) ----*---- through ----*---- are
incrementally funded. For these item(s), the sum of $----*---- of the
total price is presently available for payment and allotted to this
contract. An allotment schedule is set forth in paragraph (j) of this
clause.
(b) For item(s) identified in paragraph (a) of this clause, the
Contractor agrees to perform up to the point at which the total amount
payable by the Government, including reimbursement in the event of
termination of those item(s) for the Government's convenience,
approximates, but does not exceed, the total amount currently allotted
to the contract. The Contractor is not authorized to continue work on
those item(s) beyond that point. The Government will not be obligated
in any event to reimburse the Contractor in excess of the amount
allotted to the contract for those item(s) regardless of anything to
the contrary in the clause entitled ``Termination for Convenience of
the Government'' or paragraph (l) entitled ``Termination for the
Government's Convenience'' of the clause at FAR 52.212-4, ``Commercial
Terms and Conditions-Commercial Items.'' As used in this clause, the
total amount payable by the Government in the event of termination of
applicable contract line item(s) for convenience includes costs,
profit, and estimated termination settlement costs for those item(s).
(c) Notwithstanding the dates specified in the allotment schedule
in paragraph (j) of this clause, the Contractor will notify the
Contracting Officer in writing at least 90 days prior to the date when,
in the Contractor's best judgment, the work will reach the point at
which the total amount payable by the Government, including any cost
for termination for convenience, will approximate 85 percent of the
total amount then allotted to the contract for performance of the
applicable item(s). The notification will state: (1) the estimated date
when that point will be reached; and (2) an estimate of additional
funding, if any, needed to continue performance of applicable line
items up to the next scheduled date for allotment of funds identified
in paragraph (j) of this clause, or to a mutually agreed upon
substitute date. The notification will also advise the Contracting
Officer of the estimated amount of additional funds that will be
required for the timely performance of the item(s) funded pursuant to
this clause, for a subsequent period as may be specified in the
allotment schedule in paragraph (j) of this clause or otherwise agreed
to by the parties. If after such notification additional funds are not
allotted by the date identified in the Contractor's notification, or by
an agreed substitute date, the Contracting Officer will terminate any
item(s) for which additional funds have not been allotted, pursuant to
the clause of this contract entitled ``Termination for Convenience of
the Government'' or paragraph (l) entitled ``Termination for the
Government's Convenience'' of the clause at FAR 52.212-4, ``Commercial
Terms and Conditions-Commercial Items.''
(d) When additional funds are allotted for continued performance of
the contract line item(s) identified in paragraph (a) of this clause,
the parties
[[Page 58520]]
will agree as to the period of contract performance which will be
covered by the funds. The provisions of paragraphs (b) through (d) of
this clause will apply in like manner to the additional allotted funds
and agreed substitute date, and the contract will be modified
accordingly.
(e) If, solely by reason of failure of the Government to allot
additional funds, by the dates indicated below, in amounts sufficient
for timely performance of the contract line item(s) identified in
paragraph (a) of this clause, the Contractor incurs additional costs or
is delayed in the performance of the work under this contract and if
additional funds are allotted, an equitable adjustment will be made in
the price or prices (including appropriate target, billing, and ceiling
prices where applicable) of the item(s), or in the time of delivery, or
both. Failure to agree to any such equitable adjustment hereunder will
be a dispute concerning a question of fact within the meaning of the
clause entitled ``Disputes.''
(f) The Government may at any time prior to termination allot
additional funds for the performance of the contract line item(s)
identified in paragraph (a) of this clause.
(g) The termination provisions of this clause do not limit the
rights of the Government under the clause entitled ``Default'' or
``Termination for Cause.'' The provisions of this clause are limited to
the work and allotment of funds for the contract line item(s) set forth
in paragraph (a) of this clause. This clause no longer applies once the
contract is fully funded except with regard to the rights or
obligations of the parties concerning equitable adjustments negotiated
under paragraphs (d) and (e) of this clause.
(h) Nothing in this clause affects the right of the Government to
terminate this contract pursuant to the clause of this contract
entitled ``Termination for Convenience of the Government'' or paragraph
(l) entitled ``Termination for the Government's Convenience'' of the
clause at FAR 52.212-4, ``Commercial Terms and Conditions-Commercial
Items.''
(i) Nothing in this clause shall be construed as authorization of
voluntary services whose acceptance is otherwise prohibited under 31
U.S.C. 1342.
(j) The parties contemplate that the Government will allot funds to
this contract in accordance with the following schedule:
On execution of contract $ ----
(month) (day), (year) $ ----
(month) (day), (year) $ ----
(month) (day), (year) $ ----
(End of clause)
ALTERNATE I (DATE). If only a certain line item(s) will be
incrementally funded, substitute the following paragraph (a) for
paragraph (a) of the basic clause:
(a) Contract line item(s) ---- is incrementally funded. The sum of
$----*---- is presently available for payment and allotted to this
contract. An allotment schedule is contained in paragraph (j) of this
clause.
* To be inserted after negotiation.
[FR Doc. E8-23660 Filed 10-6-08; 8:45 am]
BILLING CODE 6820-EP-S
