Federal Acquisition Regulation; FAR Case 2008-015, Payments Under Fixed-Price Architecture and Engineering Contracts, 20666-20667 [E9-10351]
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20666
Federal Register / Vol. 74, No. 85 / Tuesday, May 5, 2009 / Proposed Rules
Dated: April 20, 2009.
Walter W. Kovalick, Jr.,
Acting Regional Administrator, Region 5.
[FR Doc. E9–10334 Filed 5–4–09; 8:45 am]
[FAR Case 2008–015; Docket 2009–0015;
Sequence 1]
Washington, DC 20405, ATTN: Hada
Flowers.
Instructions: Please submit comments
only and cite FAR case 2008–015 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 Ms.
Meredith Murphy, Procurement
Analyst, at (202) 208–6925 for
clarification of content. For information
pertaining to status or publication
schedules, contact the Regulatory
Secretariat at (202) 501–4755. Please
cite FAR case 2008–015.
SUPPLEMENTARY INFORMATION:
RIN: 9000–AL26
A. Background
Federal Acquisition Regulation; FAR
Case 2008–015, Payments Under
Fixed-Price Architecture and
Engineering Contracts
The Federal Acquisition Regulation
(FAR) 52.232–10, Payments under
Fixed-Price Architecture-Engineer
Contracts, currently requires the
contracting officer to withhold 10% of
the amounts due on each voucher;
however, payment may be made in full
during any month in which the
contracting officer determines the
performance to be satisfactory. The
Government retains the withhold
amount until the contracting officer
determines that the work has been
satisfactorily completed. The
contracting officer may release excess
withhold amounts to the contractor
when it is determined that work is
substantially complete and when the
contracting officer determines that the
amount retained is in excess of the
amount adequate for the protection of
the Governments interests.
This rule proposes to revise FAR
52.232–10 to permit contracting officers
to use their judgment regarding the
amount of payment withhold to apply
under fixed-price architecture-engineer
contracts (based on an assessment of the
contractor’s performance under the
contract) so that the withhold amount
will be applied at the level necessary to
protect the Government’s interests. This
is in contrast to the current requirement
that contracting officers withhold 10
percent on all payments. Thus, the rule
proposes to revise paragraphs (b) and (c)
of the contract clause at FAR 52.232–10
to state that the contracting officer may
(rather than shall) withhold up to 10
percent of the payment amount due and
that the amount of withhold shall be
determined based upon the contractor’s
performance record. The rule also
makes several related editorial changes
including one that clarifies that the
contractor will be paid any unpaid
balance due to include withhold
BILLING CODE 6560–50–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Part 52
AGENCIES: Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Proposed rule with request for
comments.
SUMMARY: The Civilian Agency
Acquisition Council (CAAC) and the
Defense Acquisition Regulations
Council (DARC) propose to amend the
Federal Acquisition Regulation (FAR) to
revise the withholding-of-payment
requirements under FAR clause 52.232–
10, Payments Under Fixed-Price
Architect-Engineer Contracts.
DATES: Interested parties should submit
written comments to the Regulatory
Secretariat on or before July 6, 2009 to
be considered in the formulation of a
final rule.
ADDRESSES: Submit comments
identified by FAR case 2008–015 by any
of the following methods:
• Regulations.gov: https://
www.regulations.gov.
Submit comments via the Federal
eRulemaking portal by inputting ‘‘FAR
Case 2008–015’’ under the heading
‘‘Comment or Submission’’. Select the
link ‘‘Send a Comment or Submission’’
that corresponds with FAR Case 2008–
015. Follow the instructions provided to
complete the ‘‘Public Comment and
Submission Form’’. Please include your
name, company name (if any), and
‘‘FAR Case 2008–015’’ on your attached
document.
• Fax: 202–501–4067.
• Mail: General Services
Administration, Regulatory Secretariat
(VPR), 1800 F Street NW, Room 4041,
VerDate Nov<24>2008
22:30 May 04, 2009
Jkt 217001
PO 00000
Frm 00037
Fmt 4702
Sfmt 4702
amounts at the successful completion of
the design work.
This case originated from a
recommendation in the Small Business
Administration’s Regulatory Review and
Reform (r3) initiative. The current
withholding provisions negatively
impact the cash flow of architectengineer contractors and may, in some
instances, result in the withholding of
amounts that exceed reasonable
amounts to protect the Government’s
interests.
This is not a significant regulatory
action and, therefore, is not subject to
review under Section 6(b) of Executive
Order 12866, Regulatory Planning and
Review, dated September 30, 1933. This
rule is not a major rule under 5 U.S.C.
804.
B. Regulatory Flexibility Act
The Councils do 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, at 5 U.S.C. 601, et seq., because the
rule does not impose any additional
requirements on small businesses. There
are approximately 230,000 architectengineer firms, many of which are small
businesses. This rule actually eases the
impact on such firms. Therefore, an
Initial Regulatory Flexibility Analysis
has not been performed. We invite
comments from small businesses and
other interested parties. The Councils
will consider comments from small
entities concerning the affected FAR
Part 52 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. (FAR Case 2008–015)
in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does
not apply because the proposed changes
to the FAR do not impose information
collection requirements that require the
approval of the Office of Management
and Budget under 44 U.S.C. 3501, et
seq.
List of Subjects in 48 CFR Part 52
Government Procurement.
Dated: April 28, 2009.
Al Matera
Director, Office of Acquisition Policy.
Therefore, DoD, GSA, and NASA
propose to amend 48 CFR part 52 as set
forth below:
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
1. The authority citation for 48 CFR
part 52 is revised to read as follows:
E:\FR\FM\05MYP1.SGM
05MYP1
Federal Register / Vol. 74, No. 85 / Tuesday, May 5, 2009 / Proposed Rules
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 42 U.S.C. 2473(c).
2. Amend section 52.232–10 by
revising the date of the clause; by
revising the last sentence or paragraph
(a), and by revising paragraphs (b) and
(c) to read as follows:
52.232–10 Payments under Fixed-Price
Architect-Engineer Contracts.
*
*
*
*
*
PAYMENTS UNDER FIXED-PRICE
ARCHITECT-ENGINEER CONTRACTS
(DATE)
(a) * * * The estimates, along with any
supporting data required by the
Contracting Officer, shall be prepared by
the Contractor and submitted along with
its voucher.
(b) After receipt of each substantiated
voucher the Government shall pay the
voucher as approved by the Contracting
Officer or authorized representative.
The Contracting Officer may require a
withhold of up to 10 percent of the
amounts due under paragraph (a) of this
clause in order to protect the
Government’s interest and ensure
satisfactory completion of the contract.
The amount of withhold shall be
determined based upon the contractor’s
performance record under this contract.
Whenever the Contracting Officer
determines that the work is
substantially complete and that the
amount retained is in excess of the
amount adequate for the protection of
the Government, the Contracting Officer
may release the excess amount to the
Contractor.
(c) Upon satisfactory completion by
the Contractor and final acceptance by
the Contracting Officer of all design
work done by the Contractor under the
‘‘Statement of Architect-Engineer
Services’’, the Contractor will be paid
the unpaid balance of any money due
for design work under the statement,
including all withheld amounts.
*
*
*
*
*
(End of clause)
[FR Doc. E9–10351 Filed 5–4–09; 8:45 am]
BILLING CODE 6820–EP–S
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Parts 222 and 223
[Docket No. 0809121212–81515–01]
RIN 0648–AX20
Endangered and Threatened Wildlife;
Sea Turtle Conservation
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
VerDate Nov<24>2008
22:30 May 04, 2009
Jkt 217001
Atmospheric Administration (NOAA),
Commerce.
ACTION: Proposed rule; request for
comments.
SUMMARY: The National Marine
Fisheries Service (NMFS) currently
requires the use of chain-mat modified
dredge gear in the Atlantic sea scallop
fishery south of 41°9.0′ North latitude
from May 1 through November 30 each
year. This gear is necessary to help
reduce mortality and injury to
endangered and threatened sea turtles
captured in this fishery and to conserve
sea turtles listed under the Endangered
Species Act (ESA). This proposed action
would make minor modifications to the
current requirements by clarifying
where on the dredge the chain mat
should be hung; by excluding the sweep
from the requirement that the side of
each opening in the chain mat be less
than or equal to 14 inches (35.5 cm);
and by adding definitions of the sweep
and the diamonds, which are terms used
to describe parts of the scallop dredge
gear. Any incidental take of threatened
sea turtles in Atlantic sea scallop dredge
gear in compliance with the gear
modification requirements and all other
applicable requirements will be
exempted from the ESA prohibition
against takes. NMFS is requesting public
comment on this action, the focus of
which is the minor modifications
described here. NMFS is not accepting
public comment on the existing chain
mat requirements through this proposed
rule.
DATES: Comments on the proposed rule
must be received by 5 p.m. EST on June
4, 2009.
ADDRESSES: Written comments on this
action, identified by RIN 0648–AX20,
may be submitted by any one of the
following methods:
• Electronic submissions: Submit all
electronic public comments via the
Federal eRulemaking portal at https://
www.regulations.gov.
• Fax: 978–281–9394, ATTN: Sea
Turtle Conservation Measures, Proposed
Rule.
• Mail: Mary A. Colligan, Assistant
Regional Administrator for Protected
Resources, NMFS, Northeast Region, 55
Great Republic Drive, Gloucester, MA
01930, Attn: Sea Turtle Conservation
Measures, Proposed Rule.
Instructions: All comments received
are a part of the public record and will
generally be posted to https://
www.regulations.gov without change.
All personal identifying information (for
example, name, address, etc.)
voluntarily submitted by the commenter
may be publicly accessible. Do not
PO 00000
Frm 00038
Fmt 4702
Sfmt 4702
20667
submit confidential business
information or otherwise sensitive or
protected information.
NMFS will accept anonymous
comments (enter ‘‘N/A’’ in the required
fields if you wish to remain
anonymous). Attachments to electronic
comments will be accepted in Microsoft
Word, Excel, WordPerfect, or Adobe
PDF file formats only.
Copies of the Draft Supplemental
Environmental Assessment/Regulatory
Impact Review can be obtained from
https://www.nero.noaa.gov/nero/regs/
com.html listed under the Electronic
Access portion of this document or by
writing to Pasquale Scida, NMFS,
Northeast Region, 55 Great Republic
Drive, Gloucester, MA 01930.
FOR FURTHER INFORMATION CONTACT:
Pasquale Scida (ph. 978–281–9208, fax
978–281–9394, e-mail
pasquale.scida@noaa.gov).
SUPPLEMENTARY INFORMATION:
Background
All sea turtles that occur in U.S.
waters are listed as either endangered or
threatened under the Endangered
Species Act of 1973 (ESA). The Kemp’s
ridley (Lepidochelys kempii),
leatherback (Dermochelys coriacea), and
hawksbill (Eretmochelys imbricata) sea
turtles are listed as endangered. The
loggerhead (Caretta caretta) and green
(Chelonia mydas) sea turtles are listed
as threatened, except for breeding
populations of green turtles in Florida
and on the Pacific coast of Mexico that
are listed as endangered. Kemp’s ridley,
hawksbill, loggerhead, and green sea
turtles are hard-shelled sea turtles.
Under the ESA and its implementing
regulations, taking sea turtles under
NMFS’s jurisdiction, even incidentally,
is prohibited, with exceptions identified
at 50 CFR 223.206. The incidental take,
both lethal and non-lethal, of
loggerhead, Kemp’s ridley, and
unidentified hard-shelled sea turtles as
a result of scallop dredging has been
observed in the Atlantic sea scallop
fishery (Northeast Fisheries Science
Center (NEFSC) Fisheries Sampling
Branch (FSB), Observer Database). In
addition, a non-lethal take of a green sea
turtle has been observed in this fishery
(NEFSC FSB, Observer Database) and
one unconfirmed take of a leatherback
sea turtle was reported during the
experimental fishery to test the chainmat modified gear (DuPaul et al., 2004).
Sea turtles caught in scallop dredge
gear often suffer injuries. The most
commonly observed injury is damage to
the carapace. The exact causes of these
injuries are unknown, but most likely
appear to be from being struck by the
E:\FR\FM\05MYP1.SGM
05MYP1
Agencies
[Federal Register Volume 74, Number 85 (Tuesday, May 5, 2009)]
[Proposed Rules]
[Pages 20666-20667]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-10351]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 52
[FAR Case 2008-015; Docket 2009-0015; Sequence 1]
RIN: 9000-AL26
Federal Acquisition Regulation; FAR Case 2008-015, Payments Under
Fixed-Price Architecture and Engineering Contracts
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council (CAAC) and the Defense
Acquisition Regulations Council (DARC) propose to amend the Federal
Acquisition Regulation (FAR) to revise the withholding-of-payment
requirements under FAR clause 52.232-10, Payments Under Fixed-Price
Architect-Engineer Contracts.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat on or before July 6, 2009 to be considered in
the formulation of a final rule.
ADDRESSES: Submit comments identified by FAR case 2008-015 by any of
the following methods:
Regulations.gov: https://www.regulations.gov.
Submit comments via the Federal eRulemaking portal by inputting
``FAR Case 2008-015'' under the heading ``Comment or Submission''.
Select the link ``Send a Comment or Submission'' that corresponds with
FAR Case 2008-015. Follow the instructions provided to complete the
``Public Comment and Submission Form''. Please include your name,
company name (if any), and ``FAR Case 2008-015'' on your attached
document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (VPR), 1800 F Street NW, Room 4041, Washington, DC 20405,
ATTN: Hada Flowers.
Instructions: Please submit comments only and cite FAR case 2008-
015 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 Ms. Meredith Murphy, Procurement
Analyst, at (202) 208-6925 for clarification of content. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at (202) 501-4755. Please cite FAR case 2008-
015.
SUPPLEMENTARY INFORMATION:
A. Background
The Federal Acquisition Regulation (FAR) 52.232-10, Payments under
Fixed-Price Architecture-Engineer Contracts, currently requires the
contracting officer to withhold 10% of the amounts due on each voucher;
however, payment may be made in full during any month in which the
contracting officer determines the performance to be satisfactory. The
Government retains the withhold amount until the contracting officer
determines that the work has been satisfactorily completed. The
contracting officer may release excess withhold amounts to the
contractor when it is determined that work is substantially complete
and when the contracting officer determines that the amount retained is
in excess of the amount adequate for the protection of the Governments
interests.
This rule proposes to revise FAR 52.232-10 to permit contracting
officers to use their judgment regarding the amount of payment withhold
to apply under fixed-price architecture-engineer contracts (based on an
assessment of the contractor's performance under the contract) so that
the withhold amount will be applied at the level necessary to protect
the Government's interests. This is in contrast to the current
requirement that contracting officers withhold 10 percent on all
payments. Thus, the rule proposes to revise paragraphs (b) and (c) of
the contract clause at FAR 52.232-10 to state that the contracting
officer may (rather than shall) withhold up to 10 percent of the
payment amount due and that the amount of withhold shall be determined
based upon the contractor's performance record. The rule also makes
several related editorial changes including one that clarifies that the
contractor will be paid any unpaid balance due to include withhold
amounts at the successful completion of the design work.
This case originated from a recommendation in the Small Business
Administration's Regulatory Review and Reform (r3) initiative. The
current withholding provisions negatively impact the cash flow of
architect-engineer contractors and may, in some instances, result in
the withholding of amounts that exceed reasonable amounts to protect
the Government's interests.
This is not a significant regulatory action and, therefore, is not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1933. This rule is
not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The Councils do 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, at 5 U.S.C. 601, et seq.,
because the rule does not impose any additional requirements on small
businesses. There are approximately 230,000 architect-engineer firms,
many of which are small businesses. This rule actually eases the impact
on such firms. Therefore, an Initial Regulatory Flexibility Analysis
has not been performed. We invite comments from small businesses and
other interested parties. The Councils will consider comments from
small entities concerning the affected FAR Part 52 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. (FAR Case 2008-015) in
correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
changes to the FAR do not impose information collection requirements
that require the approval of the Office of Management and Budget under
44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 52
Government Procurement.
Dated: April 28, 2009.
Al Matera
Director, Office of Acquisition Policy.
Therefore, DoD, GSA, and NASA propose to amend 48 CFR part 52 as
set forth below:
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
1. The authority citation for 48 CFR part 52 is revised to read as
follows:
[[Page 20667]]
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Amend section 52.232-10 by revising the date of the clause; by
revising the last sentence or paragraph (a), and by revising paragraphs
(b) and (c) to read as follows:
52.232-10 Payments under Fixed-Price Architect-Engineer Contracts.
* * * * *
PAYMENTS UNDER FIXED-PRICE ARCHITECT-ENGINEER CONTRACTS (DATE)
(a) * * * The estimates, along with any supporting data required by
the Contracting Officer, shall be prepared by the Contractor and
submitted along with its voucher.
(b) After receipt of each substantiated voucher the Government
shall pay the voucher as approved by the Contracting Officer or
authorized representative. The Contracting Officer may require a
withhold of up to 10 percent of the amounts due under paragraph (a) of
this clause in order to protect the Government's interest and ensure
satisfactory completion of the contract. The amount of withhold shall
be determined based upon the contractor's performance record under this
contract. Whenever the Contracting Officer determines that the work is
substantially complete and that the amount retained is in excess of the
amount adequate for the protection of the Government, the Contracting
Officer may release the excess amount to the Contractor.
(c) Upon satisfactory completion by the Contractor and final
acceptance by the Contracting Officer of all design work done by the
Contractor under the ``Statement of Architect-Engineer Services'', the
Contractor will be paid the unpaid balance of any money due for design
work under the statement, including all withheld amounts.
* * * * *
(End of clause)
[FR Doc. E9-10351 Filed 5-4-09; 8:45 am]
BILLING CODE 6820-EP-S