Federal Acquisition Regulation; FAR Case 2009-031, Terminating Contracts, 28228-28229 [2010-12136]

Agencies

• General Services Administration
• National Aeronautics and Space Administration
• DEPARTMENT OF DEFENSE

[Federal Register Volume 75, Number 97 (Thursday, May 20, 2010)]
[Proposed Rules]
[Pages 28228-28229]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-12136]



[[Page 28228]]

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 49

[FAR Case 2009-031; Docket 2010-0090, Sequence 1]
RIN 9000-AL56


Federal Acquisition Regulation; FAR Case 2009-031, Terminating 
Contracts

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

ACTION: Proposed rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) are proposing to amend the 
Federal Acquisition Regulation (FAR) to provide clarification to the 
prescription for the FAR clause at 52.249-1, Termination for 
Convenience of the Government (Fixed Price) (Short Form), located in 
FAR 49.502(a), to apprise contracting officers that there are 
alternative clauses that can be used for terminations up to the 
simplified acquisition threshold. In addition, references to the FAR 
clauses at 52.212-4 and 52.213-4 are added in the prescription for FAR 
52.249-1 at FAR 49.502(a) and in FAR 49.002, Applicability.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat on or before July 19, 2010 to be considered in 
the formulation of a final rule.

ADDRESSES: Submit comments identified by FAR Case 2009-031 by any of 
the following methods:
     Regulations.gov: https://www.regulations.gov.
    Submit comments via the Federal eRulemaking portal by inputting 
``FAR Case 2009-031'' under the heading ``Enter Keyword or ID'' and 
selecting ``Search''. Select the link ``Submit a Comment'' that 
corresponds with ``FAR Case 2009-031''. Follow the instructions 
provided at the ``Submit a Comment'' screen. Please include your name, 
company name (if any), and ``FAR Case 2009-031'' on your attached 
document.
     Fax: 202-501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (MVCB), 1800 F Street, NW., Room 4041, ATTN: Hada Flowers, 
Washington, DC 20405.
    Instructions: Please submit comments only and cite FAR Case 2009-
031, 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. Jeritta Parnell, Procurement 
Analyst, at (202) 501-4082 for clarification of content. Please cite 
FAR case 2009-031. For information pertaining to status or publication 
schedules, contact the Regulatory Secretariat at (202) 501-4755.

SUPPLEMENTARY INFORMATION:

A. Background

    The Defense Contract Management Agency (DCMA) submitted a request 
for revisions to FAR part 49 and the associated FAR clauses in 52.549 
regarding termination of contracts. As a result, the Councils are 
proposing to amend FAR 49.502(a) to clarify when the FAR clause at 
52.249-1, Termination for Convenience of the Government (Fixed Price) 
(Short Form), is used.
    The Councils believe that clarification is needed in the 
prescription for the clause, to apprise contracting officers that there 
are alternative clauses that can be used for terminations up to the 
simplified acquisition threshold. The language in FAR 49.002 is revised 
to include a reference to FAR 12.403 and the language at FAR 49.502(a) 
is revised to include references to the FAR clauses at 52.212-4, 
Contract Terms and Conditions--Commercial Items, and at 52.213-4, Terms 
and Conditions--Simplified Acquisitions (Other than Commercial Items). 
These clauses should be used for the majority of simplified acquisition 
terminations. However, the FAR clause at 52.249-1 may be appropriate in 
certain situations where these two clauses are not applicable.
    The FAR clauses at FAR 52.212-4 (basic clause) and 52.213-4 allow 
for the contractor to be paid a percentage of the contract price 
reflecting the percentage of the work performed prior to the notice of 
termination for convenience, plus reasonable charges the contractor can 
demonstrate to the satisfaction of the Government using its standard 
record keeping system have resulted from the termination. There is no 
need for partial payments under these circumstances.
     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 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, 5 U.S.C. 601, et seq., 
because this proposed rule merely clarifies existing FAR policy. An 
Initial Regulatory Flexibility Analysis has, therefore, not been 
performed. The Councils invite comments from small business concerns 
and other interested parties on the expected impact of this rule on 
small entities.
    The Councils will also consider comments from small entities 
concerning the existing regulations in parts affected by this rule in 
accordance with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C. 610 (FAR Case 2009-031) in 
all 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. Chapter 35, et seq.

List of Subjects in 48 CFR Part 49.

     Government procurement.

    Dated: May 14, 2010.
Al Matera,
Director, Acquisition Policy Division.
    Therefore, DoD, GSA, and NASA propose amending 48 CFR part 49 as 
set forth below:

PART 49--TERMINATION OF CONTRACTS

     1. The authority citation for 48 CFR part 49 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).


49.002  Applicability.

    2. Amend section 49.002 by removing from paragraph (a) ``(see also 
13.302-4)'' and adding ``(see also 12.403 and 13.302-4)'' in its place.
    3. Amend section 49.502 by revising paragraph (a)(1) to read as 
follows:


49.502  Termination for convenience of the Government.

    (a) Fixed-price contracts that do not exceed the simplified 
acquisition threshold (short form)--(1) General use. The contracting 
officer shall insert the clause at 52.249-1, Termination for

[[Page 28229]]

Convenience of the Government (Fixed-Price) (Short Form), in 
solicitations and contracts when a fixed-price contract is contemplated 
and the contract amount is not expected to exceed the simplified 
acquisition threshold, except--
    (i) If use of the clause at 52.249-4, Termination for Convenience 
of the Government (Services) (Short Form) is appropriate;
    (ii) In contracts for research and development work with an 
educational or nonprofit institution on a no-profit basis;
    (iii) In contracts for architect-engineer services;
    (iv) If one of the clauses prescribed or cited at 49.505(a) or (c), 
is appropriate; or
    (v) When the clause at 52.212-4 or 52.213-4 is used. (See 12.403(a) 
or 13.302-5(d)(1)).
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[FR Doc. 2010-12136 Filed 5-19-10; 8:45 am]
BILLING CODE 6820-EP-S