Federal Acquisition Regulation; FAR Case 2005-032, Contractor's Request for Progress Payments, 28430-28434 [E9-13977]

Download as PDF 28430 Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations use of equivalent domestic or designated country construction material other than Bahrainian, Mexican, or Omani construction material. * * * * * [FR Doc. E9–13978 Filed 6–12–09; 8:45 am] BILLING CODE 6820–EP–S DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 32, 43, 52, and 53 [FAC 2005–33; FAR Case 2005–032; Item II; Docket 2008–0002; Sequence 1] RIN 9000–AI47 Federal Acquisition Regulation; FAR Case 2005–032, Contractor’s Request for Progress Payments AGENCIES: Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Final rule. pwalker on PROD1PC71 with RULES4 SUMMARY: The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on a final rule amending the Federal Acquisition Regulation (FAR) to incorporate improvements related to requests for progress payments and the Standard Form (SF) 1443, Contractor’s Request for Progress Payments, used to request those progress payments. Changes made to the Standard Form as published in the proposed rule include correction of misspellings, and an editorial change made at Item 4 to better describe the order number. DATES: Effective Date: July 15, 2009. FOR FURTHER INFORMATION CONTACT: For clarification of content, contact Ms. Meredith Murphy, Procurement Analyst, at (202) 208–6925. For information pertaining to status or publication schedules, contact the Regulatory Secretariat, 1800 F Street, NW, Room 4041, Washington, DC 20405, (202) 501–4755. Please cite FAC 2005–33, FAR case 2005–032. SUPPLEMENTARY INFORMATION: A. Background The Councils published a proposed rule in the Federal Register at 73 FR 19035 on April 8, 2008, to (1) address revisions necessary to implement the paid-cost rule and (2) simplify the SF 1443 and related regulations and instructions to improve clarity. VerDate Nov<24>2008 17:19 Jun 12, 2009 Jkt 217001 No comments were received by the close of the public comment period on June 9, 2008. Subsequently, one comment was received from one commenter. The commenter specifically took no issue with the proposed FAR changes, but objected to the costs that would be incurred by its member companies to make programming changes that ensue from altering the SF 1443. The commenter reasoned that ‘‘(s)ince DOD’s goal is to significantly expand the use of performance based payments, it would appear to be more cost effective not to incur significant expenditures on changes to a form (i.e., SF 1443) that is part of a system (progress payments) that is no longer the preferred system for providing financing payments.’’ The Councils were puzzled at the commenter’s cost estimate of $87,000 to update software to use the new SF 1443 because the changes incorporated into the SF 1443 by this case were, generally, necessitated by prior changes to the paid-cost rule and other changes to FAR Part 32. These changes had been in effect for some time, so contractors using SF 1443 to request progress payments have already made changes to their software to conform their progress payment requests to the updated FAR text. The commenter, an association representing large defense aerospace corporations, was requested to provide the cost analysis upon which it based its estimate of the cost to reprogram software in order to enable electronic generation and submittal of the SF 1443 to request a progress payment. The commenter subsequently provided data supporting its estimate of approximately $87,000 per contractor. This estimate and the supporting data were forwarded to the Small Business Administration (SBA) Office of Advocacy for review specifically to determine the impact of modifying the SF 1443 on small businesses. Two independent reviews were conducted, one by the SBA’s regulatory economist and one by an outside small business expert selected by the SBA. Neither of these reviews discovered a substantial economic impact on a significant number of small entities. Further, the Councils did not find the commenter’s rationale regarding performance-based payments convincing. While it is the goal of Federal Government agencies, not just DoD, to use performance-based payments wherever possible, there remain many circumstances in which progress payments are an important financing mechanism. Therefore, the PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 Councils approved this case as a final rule. During a final review by the Councils’ Acquisition Finance Team, it was discovered that the last item in the ‘‘INSTRUCTIONS’’ section of the form on page 2 was labeled in error as pertaining to ‘‘Item 26.’’ However, the instruction actually refers to paragraph (f) of the ‘‘CERTIFICATION’’ section. That correction has been made to the form. In addition, a sentence was added to the SF 1443 instructions for Items 14a–14e to clarify that the ‘‘financing payments’’ to be included do not include interim payments under a cost reimbursement contract. 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 Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration certify that this final rule will not 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 the changes are designed to simplify the form and improve clarity. (See also, the Background section above for a thorough discussion of lack of impact on small entities.) C. Paperwork Reduction Act The Paperwork Reduction Act does apply; however, these changes to the FAR do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Number 9000–0010. List of Subjects in 48 CFR Parts 32, 43, 52, and 53 Government procurement. Dated: June 9, 2009. Al Matera, Director, Office of Acquisition Policy. Therefore, DoD, GSA, and NASA amend 48 CFR parts 32, 43, 52, and 53 as set forth below: ■ 1. The authority citation for 48 CFR parts 32, 43, 52, and 53 continues to read as follows: ■ Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c). E:\FR\FM\15JNR4.SGM 15JNR4 Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations PART 32—CONTRACT FINANCING 2. Amend section 32.001 by adding, in alphabetical order, the definition ‘‘Liquidate’’ to read as follows: ■ 32.001 Definitions. * * * * * Liquidate means to decrease a payment for an accepted supply item or service under a contract for the purpose of recouping financing payments previously paid to the contractor. * * * * * ■ 3. Amend section 32.501–3 by revising paragraph (a)(1) and the first sentence of paragraph (a)(3) to read as follows: 32.501–3 Contract price. (a) * * * (1) Under firm-fixed price contracts, the contract price is the current amount fixed by the contract plus the not-toexceed amount for any unpriced modifications. * * * * * (3) Under a fixed-price incentive contract, the contract price is the target price plus the not-to-exceed amount of unpriced modifications. * * * * * * * * 32.503–1 [Removed and Reserved] 4. Remove and reserve section 32.503–1. ■ 5. Amend section 32.503–6 by revising paragraphs (a)(3), (f), and (g)(1)(i) to read as follows: ■ pwalker on PROD1PC71 with RULES4 Jkt 217001 43.102 [Amended] 6. Amend section 43.102 by removing from paragraph (b) the word ‘‘maximum’’ and adding the word ‘‘ceiling’’ in its place. ■ 7. Amend section 52.232–16 by revising the date of the clause; adding paragraph (a)(9); and revising paragraphs (c)(5) and (g) to read as follows: ■ (a) * * * (3) In all cases, the contracting officer shall— (i) Act fairly and reasonably; (ii) Base decisions on substantial evidence; and (iii) Document the contract file. Findings made under paragraph (c) of 17:19 Jun 12, 2009 PART 43—CONTRACT MODIFICATIONS PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 32.503–6 Suspension or reduction of payments. VerDate Nov<24>2008 the Progress Payments clause shall be in writing. * * * * * (f) Fair value of undelivered work. Progress payments must be commensurate with the fair value of work accomplished in accordance with contract requirements. The contracting officer must adjust progress payments when necessary to ensure that the fair value of undelivered work equals or exceeds the amount of unliquidated progress payments. On loss contracts, the application of a loss ratio as provided at paragraph (g) of this subsection constitutes this adjustment. (g) * * * (1) * * * (i) Revise the current contract price used in progress payment computations (the current ceiling price under fixedprice incentive contracts) to include the not-to-exceed amount for any pending change orders and unpriced orders. * * * * * 52.232–16 Progress Payments. * * * * * Progress Payments (JUL 2009) * * * * * (a) * * * (9) The costs applicable to items delivered, invoiced, and accepted shall not include PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 28431 costs in excess of the contract price of the items. * * * * * (c) * * * (5) The fair value of the undelivered work is less than the amount of unliquidated progress payments for that work. * * * * * (g) Reports, forms, and access to records. (1) The Contractor shall promptly furnish reports, certificates, financial statements, and other pertinent information (including estimates to complete) reasonably requested by the Contracting Officer for the administration of this clause. Also, the Contractor shall give the Government reasonable opportunity to examine and verify the Contractor’s books, records, and accounts. (2) The Contractor shall furnish estimates to complete that have been developed or updated within six months of the date of the progress payment request. The estimates to complete shall represent the Contractor’s best estimate of total costs to complete all remaining contract work required under the contract. The estimates shall include sufficient detail to permit Government verification. (3) Each Contractor request for progress payment shall: (i) Be submitted on Standard Form 1443, Contractor’s Request for Progress Payment, or the electronic equivalent as required by agency regulations, in accordance with the form instructions and the contract terms; and (ii) Include any additional supporting documentation requested by the Contracting Officer. * * * * * PART 53—FORMS 53.232 [Amended] 8. Amend section 53.232 by removing ‘‘(10/82)’’ and adding ‘‘(JUL 2009)’’ in its place; and by removing ‘‘, as specified in 32.503.1’’. ■ 9. Amend section 53.301–1443 by revising the form to read as follows: ■ 53.301–1443 Contractor’s Request for Progress Payment. BILLING CODE 6820–EP–S E:\FR\FM\15JNR4.SGM 15JNR4 VerDate Nov<24>2008 Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 17:19 Jun 12, 2009 Jkt 217001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4725 E:\FR\FM\15JNR4.SGM 15JNR4 ER15JN09.001</GPH> pwalker on PROD1PC71 with RULES4 28432 VerDate Nov<24>2008 17:19 Jun 12, 2009 Jkt 217001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\15JNR4.SGM 15JNR4 28433 ER15JN09.002</GPH> pwalker on PROD1PC71 with RULES4 Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations 28434 Federal Register / Vol. 74, No. 113 / Monday, June 15, 2009 / Rules and Regulations [FR Doc. E9–13977 Filed 6–12–09; 8:45 am] BILLING CODE 6820–EP–C and National Aeronautics and Space Administration (NASA). ACTION: DEPARTMENT OF DEFENSE Small Entity Compliance Guide. This document is issued under the joint authority of the Secretary of Defense, the Administrator of General Services and the Administrator of the National Aeronautics and Space Administration. This Small Entity Compliance Guide has been prepared in accordance with Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996. It consists of a summary of rules appearing in Federal Acquisition Circular (FAC) 2005–33 which amend the FAR. Interested parties may obtain further information regarding these rules by referring to FAC 2005–33, SUMMARY: GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Chapter 1 [Docket FAR 2009–0002, Sequence 4] Federal Acquisition Regulation; Federal Acquisition Circular 2005–33; Small Entity Compliance Guide AGENCIES: Department of Defense (DoD), General Services Administration (GSA), which precedes this document. These documents are also available via the Internet at http://www.regulations.gov. FOR FURTHER INFORMATION CONTACT: Ms. Hada Flowers, Regulatory Secretariat, (202) 208–7282. For clarification of content, contact the analyst whose name appears in the table below. LIST OF RULES IN FAC 2005–33 Item Subject I ............ II ........... Trade Agreements—Costa Rica, Oman, and Peru (Interim) .......................................................... Contractor’s Request for Progress Payments ................................................................................. SUPPLEMENTARY INFORMATION: Summaries for each FAR rule follow. For the actual revisions and/or amendments to these FAR cases, refer to the specific item number and subject set forth in the documents following these item summaries. FAC 2005–33 amends the FAR as specified below: Item I—Trade Agreements—Costa Rica, Oman, and Peru (FAR Case 2008–036) (Interim) pwalker on PROD1PC71 with RULES4 This interim rule allows contracting officers to purchase the goods and services of Costa Rica, Oman, and Peru without application of the Buy American Act if the acquisition is subject to the applicable trade VerDate Nov<24>2008 18:49 Jun 12, 2009 Jkt 217001 FAR case agreements. The free trade agreements with Costa Rica, Oman, and Peru join the North American Free Trade Agreement (NAFTA), the Australia, Bahrain, Chile, Morocco, and Singapore Free Trade Agreements, and the Dominican Republic-Central AmericaUnited States Free Trade Agreement (CAFTA–DR) with respect to the Dominican Republic, El Salvador, Guatemala, Honduras, and Nicaragua, which are already in the FAR. The threshold for supplies and services is $67,826 for the CAFTA-DR and $194,000 for the Oman and Peru FTAs. The threshold for construction is $7,443,000 for the CAFTA-DR and the Peru FTA and $8,817,449 for the Oman FTA. PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 2008–036 2005–032 Analyst Murphy. Murphy. Item II—Contractor’s Request for Progress Payments (FAR Case 2005– 032) This final rule converts the proposed rule published at 73 FR 19035 on April 8, 2008, to a final rule with one editorial change. This final rule incorporates improvements related to requests for progress payments and the Standard Form (SF) 1443, Contractor’s Request for Progress Payments, used to request those progress payments. Dated: June 9, 2009. Al Matera, Director, Office of Acquisition Policy. [FR Doc. E9–13976 Filed 6–12–09; 8:45 am] BILLING CODE 6820–EP–C E:\FR\FM\15JNR4.SGM 15JNR4

Agencies

[Federal Register Volume 74, Number 113 (Monday, June 15, 2009)]
[Rules and Regulations]
[Pages 28430-28434]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-13977]


-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 32, 43, 52, and 53

[FAC 2005-33; FAR Case 2005-032; Item II; Docket 2008-0002; Sequence 1]
RIN 9000-AI47


Federal Acquisition Regulation; FAR Case 2005-032, Contractor's 
Request for Progress Payments

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have agreed on a final rule 
amending the Federal Acquisition Regulation (FAR) to incorporate 
improvements related to requests for progress payments and the Standard 
Form (SF) 1443, Contractor's Request for Progress Payments, used to 
request those progress payments. Changes made to the Standard Form as 
published in the proposed rule include correction of misspellings, and 
an editorial change made at Item 4 to better describe the order number.

DATES: Effective Date: July 15, 2009.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Ms. Meredith Murphy, Procurement Analyst, at (202) 208-6925. For 
information pertaining to status or publication schedules, contact the 
Regulatory Secretariat, 1800 F Street, NW, Room 4041, Washington, DC 
20405, (202) 501-4755. Please cite FAC 2005-33, FAR case 2005-032.

SUPPLEMENTARY INFORMATION:

A. Background

    The Councils published a proposed rule in the Federal Register at 
73 FR 19035 on April 8, 2008, to (1) address revisions necessary to 
implement the paid-cost rule and (2) simplify the SF 1443 and related 
regulations and instructions to improve clarity.
    No comments were received by the close of the public comment period 
on June 9, 2008. Subsequently, one comment was received from one 
commenter. The commenter specifically took no issue with the proposed 
FAR changes, but objected to the costs that would be incurred by its 
member companies to make programming changes that ensue from altering 
the SF 1443. The commenter reasoned that ``(s)ince DOD's goal is to 
significantly expand the use of performance based payments, it would 
appear to be more cost effective not to incur significant expenditures 
on changes to a form (i.e., SF 1443) that is part of a system (progress 
payments) that is no longer the preferred system for providing 
financing payments.''
    The Councils were puzzled at the commenter's cost estimate of 
$87,000 to update software to use the new SF 1443 because the changes 
incorporated into the SF 1443 by this case were, generally, 
necessitated by prior changes to the paid-cost rule and other changes 
to FAR Part 32. These changes had been in effect for some time, so 
contractors using SF 1443 to request progress payments have already 
made changes to their software to conform their progress payment 
requests to the updated FAR text.
    The commenter, an association representing large defense aerospace 
corporations, was requested to provide the cost analysis upon which it 
based its estimate of the cost to reprogram software in order to enable 
electronic generation and submittal of the SF 1443 to request a 
progress payment. The commenter subsequently provided data supporting 
its estimate of approximately $87,000 per contractor. This estimate and 
the supporting data were forwarded to the Small Business Administration 
(SBA) Office of Advocacy for review specifically to determine the 
impact of modifying the SF 1443 on small businesses. Two independent 
reviews were conducted, one by the SBA's regulatory economist and one 
by an outside small business expert selected by the SBA. Neither of 
these reviews discovered a substantial economic impact on a significant 
number of small entities.
    Further, the Councils did not find the commenter's rationale 
regarding performance-based payments convincing. While it is the goal 
of Federal Government agencies, not just DoD, to use performance-based 
payments wherever possible, there remain many circumstances in which 
progress payments are an important financing mechanism. Therefore, the 
Councils approved this case as a final rule.
    During a final review by the Councils' Acquisition Finance Team, it 
was discovered that the last item in the ``INSTRUCTIONS'' section of 
the form on page 2 was labeled in error as pertaining to ``Item 26.'' 
However, the instruction actually refers to paragraph (f) of the 
``CERTIFICATION'' section. That correction has been made to the form. 
In addition, a sentence was added to the SF 1443 instructions for Items 
14a-14e to clarify that the ``financing payments'' to be included do 
not include interim payments under a cost reimbursement contract.
    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 Department of Defense, the General Services Administration, and 
the National Aeronautics and Space Administration certify that this 
final rule will not 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 the changes are 
designed to simplify the form and improve clarity. (See also, the 
Background section above for a thorough discussion of lack of impact on 
small entities.)

C. Paperwork Reduction Act

    The Paperwork Reduction Act does apply; however, these changes to 
the FAR do not impose additional information collection requirements to 
the paperwork burden previously approved under OMB Control Number 9000-
0010.

List of Subjects in 48 CFR Parts 32, 43, 52, and 53

    Government procurement.

    Dated: June 9, 2009.
Al Matera,
Director, Office of Acquisition Policy.

0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 32, 43, 52, and 53 as 
set forth below:
0
1. The authority citation for 48 CFR parts 32, 43, 52, and 53 continues 
to read as follows:

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

[[Page 28431]]

PART 32--CONTRACT FINANCING

0
2. Amend section 32.001 by adding, in alphabetical order, the 
definition ``Liquidate'' to read as follows:


32.001  Definitions.

* * * * *
    Liquidate means to decrease a payment for an accepted supply item 
or service under a contract for the purpose of recouping financing 
payments previously paid to the contractor.
* * * * *

0
3. Amend section 32.501-3 by revising paragraph (a)(1) and the first 
sentence of paragraph (a)(3) to read as follows:


32.501-3  Contract price.

    (a) * * *
    (1) Under firm-fixed price contracts, the contract price is the 
current amount fixed by the contract plus the not-to-exceed amount for 
any unpriced modifications.
* * * * *
    (3) Under a fixed-price incentive contract, the contract price is 
the target price plus the not-to-exceed amount of unpriced 
modifications. * * *
* * * * *


32.503-1  [Removed and Reserved]

0
4. Remove and reserve section 32.503-1.

0
5. Amend section 32.503-6 by revising paragraphs (a)(3), (f), and 
(g)(1)(i) to read as follows:


32.503-6  Suspension or reduction of payments.

    (a) * * *
    (3) In all cases, the contracting officer shall--
    (i) Act fairly and reasonably;
    (ii) Base decisions on substantial evidence; and
    (iii) Document the contract file. Findings made under paragraph (c) 
of the Progress Payments clause shall be in writing.
* * * * *
    (f) Fair value of undelivered work. Progress payments must be 
commensurate with the fair value of work accomplished in accordance 
with contract requirements. The contracting officer must adjust 
progress payments when necessary to ensure that the fair value of 
undelivered work equals or exceeds the amount of unliquidated progress 
payments. On loss contracts, the application of a loss ratio as 
provided at paragraph (g) of this subsection constitutes this 
adjustment.
    (g) * * *
    (1) * * *
    (i) Revise the current contract price used in progress payment 
computations (the current ceiling price under fixed-price incentive 
contracts) to include the not-to-exceed amount for any pending change 
orders and unpriced orders.
* * * * *

PART 43--CONTRACT MODIFICATIONS


43.102  [Amended]

0
6. Amend section 43.102 by removing from paragraph (b) the word 
``maximum'' and adding the word ``ceiling'' in its place.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
7. Amend section 52.232-16 by revising the date of the clause; adding 
paragraph (a)(9); and revising paragraphs (c)(5) and (g) to read as 
follows:


52.232-16  Progress Payments.

* * * * *
    Progress Payments (JUL 2009)
* * * * *
    (a) * * *
    (9) The costs applicable to items delivered, invoiced, and 
accepted shall not include costs in excess of the contract price of 
the items.
* * * * *
    (c) * * *
    (5) The fair value of the undelivered work is less than the 
amount of unliquidated progress payments for that work.
* * * * *
    (g) Reports, forms, and access to records. (1) The Contractor 
shall promptly furnish reports, certificates, financial statements, 
and other pertinent information (including estimates to complete) 
reasonably requested by the Contracting Officer for the 
administration of this clause. Also, the Contractor shall give the 
Government reasonable opportunity to examine and verify the 
Contractor's books, records, and accounts.
    (2) The Contractor shall furnish estimates to complete that have 
been developed or updated within six months of the date of the 
progress payment request. The estimates to complete shall represent 
the Contractor's best estimate of total costs to complete all 
remaining contract work required under the contract. The estimates 
shall include sufficient detail to permit Government verification.
    (3) Each Contractor request for progress payment shall:
    (i) Be submitted on Standard Form 1443, Contractor's Request for 
Progress Payment, or the electronic equivalent as required by agency 
regulations, in accordance with the form instructions and the 
contract terms; and
    (ii) Include any additional supporting documentation requested 
by the Contracting Officer.
* * * * *

PART 53--FORMS


53.232  [Amended]

0
8. Amend section 53.232 by removing ``(10/82)'' and adding ``(JUL 
2009)'' in its place; and by removing ``, as specified in 32.503.1''.

0
9. Amend section 53.301-1443 by revising the form to read as follows:


53.301-1443  Contractor's Request for Progress Payment.

BILLING CODE 6820-EP-S

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[[Page 28434]]


[FR Doc. E9-13977 Filed 6-12-09; 8:45 am]
BILLING CODE 6820-EP-C