Defense Federal Acquisition Regulation Supplement: Modification of DFARS Clause “Payment for Subline Items Not Separately Priced” (DFARS Case 2018-D050), 19691-19692 [2020-06726]
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Federal Register / Vol. 85, No. 68 / Wednesday, April 8, 2020 / Rules and Regulations
liquid net worth, connected by
significant ownership interest to the
Contractor.
(E) Title to identified Contractor
assets of adequate worth.
(ii) Paragraph (f) of the clause at FAR
52.232–32 does not apply to the extent
that the Contractor and the Contracting
Officer agree on alternative forms of
security. In the event the Contractor
fails to provide adequate security, as
required in this contract, no financing
payment will be made under this
contract. Upon receipt of adequate
security, financing payments will be
made, including all previous payments
to which the Contractor is entitled, in
accordance with the terms of the
provisions for contract financing. If at
any time the Contracting Officer
determines that the security provided by
the Contractor is insufficient, the
Contractor shall promptly provide such
additional security as the Contracting
Officer determines necessary. In the
event the Contractor fails to provide
such additional security, the
Contracting Officer may collect or
liquidate such security that has been
provided and suspend further payments
to the Contractor; and the Contractor
shall repay to the Government the
amount of unliquidated financing
payments as the Contracting Officer at
his sole discretion deems repayable.
■ 12. Add section 252.232–7015 to read
as follows:
the Federal Acquisition Regulation (FAR) or
performance-based payments in accordance
with FAR subpart 32.10 will not be
considered as a handicap or adverse factor in
the award of the contract.
(b) This solicitation includes a FAR and
Defense Federal Acquisition Regulation
Supplement (DFARS) clause for
performance-based payments and a FAR
clause for progress payments. The resultant
contract will include either performancebased payments or progress payments, not
both, except as may be authorized on
separate orders subject to FAR 32.1003(c).
(1) The performance-based payments
clauses will be included in the contract if—
(i) The Offeror has provided positive
representation in response to DFARS
252.232–7015, Performance-Based
Payments—Representation;
(ii) The Offeror proposes a performancebased payment arrangement in accordance
with FAR 52.232–28, Invitation to Propose
Performance-Based Payments, including
proposed events and timing, event
completion criteria, event values, and
expected expenditure profile; and
(iii) The Offeror and the Government reach
agreement on all aspects of the arrangement.
(2) If performance-based payments clauses
are not included in the resultant contract, the
progress payments clause included in this
solicitation will be included in any resultant
contract, modified or altered if necessary in
accordance with FAR 52.232–16 and its
Alternate I. Even though the progress
payments clause is included in the contract,
the clause shall be inoperative during any
time the contractor’s accounting system and
controls are determined by the Government
to be inadequate for segregation and
accumulation of contract costs.
252.232–7015 Performance-Based
Payments—Representation
(End of provision)
As prescribed in 232.1005–70(b), use
the following provision:
Performance-Based Payments—
Representation (APR 2020)
(End of provision)
13. Add section 252.232–7016 to read
as follows:
■
lotter on DSKBCFDHB2PROD with RULES
252.232–7016 Notice of Progress
Payments or Performance-Based Payments
As prescribed in 232.1005–70(c),
insert the following provision:
Notice of Progress Payments or
Performance-Based Payments (APR
2020)
Jkt 250001
Defense Acquisition Regulations
System
48 CFR Parts 204 and 252
[Docket DARS–2019–0049]
RIN 0750–AK14
Defense Federal Acquisition
Regulation Supplement: Modification
of DFARS Clause ‘‘Payment for Subline
Items Not Separately Priced’’ (DFARS
Case 2018–D050)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to modify the text of an
existing DFARS clause to clarify its
SUMMARY:
(a) The need for customary progress
payments in accordance with subpart 32.5 of
19:34 Apr 07, 2020
BILLING CODE 5001–06–P
DEPARTMENT OF DEFENSE
(a) In accordance with 10 U.S.C.
2307(b)(4)(A), the Contractor’s financial
statements shall be in compliance with
Generally Accepted Accounting Principles in
order to receive performance-based
payments.
(b) The Offeror represents that its financial
statements are [ ] are not [ ] in compliance
with Generally Accepted Accounting
Principles.
VerDate Sep<11>2014
[FR Doc. 2020–06728 Filed 4–7–20; 8:45 am]
PO 00000
Frm 00041
Fmt 4700
Sfmt 4700
19691
intent and conform its language to
current DFARS terminology, pursuant to
action taken by the Regulatory Reform
Task Force.
DATES: Effective April 8, 2020.
FOR FURTHER INFORMATION CONTACT: Ms.
Carrie Moore, telephone 571–372–6093.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the
Federal Register at 84 FR 58362 on
October 31, 2019, to modify DFARS
clause 252.207–7002, Payment for
Subline Items Not Separately Priced, to
conform the text of the clause to the
current contract line item structure
terminology by replacing ‘‘contract line
item’’ with ‘‘contract line or subline
item’’ and add a prescription for the
DFARS clause in the applicable section
of DFARS 204.71. No public comments
were received in response to the
proposed rule. No changes are made in
the final rule from the proposed rule.
II. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold and for Commercial Items,
Including Commercially Available Offthe-Shelf Items
This rule does not create any new
provisions or clauses. The rule updates
language used in the clause text to
conform with current contract line item
structure terminology. This rule does
not change the applicability of the
affected clause.
III. Executive Orders 12866 and 13563
E.O.s 12866 and 13563 direct agencies
to assess all costs and benefits of
available regulatory alternatives and, if
regulation is necessary, to select
regulatory approaches that maximize
net benefits (including potential
economic, environmental, public health
and safety effects, distributive impacts,
and equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is not a significant
regulatory action and, therefore, was not
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
IV. Executive Order 13771
This rule is not subject to E.O. 13771,
because this rule is not a significant
regulatory action under E.O. 12866.
V. Regulatory Flexibility Act
A final regulatory flexibility analysis
(FRFA) has been prepared consistent
with the Regulatory Flexibility Act, 5
E:\FR\FM\08APR1.SGM
08APR1
19692
Federal Register / Vol. 85, No. 68 / Wednesday, April 8, 2020 / Rules and Regulations
U.S.C. 601, et seq. The FRFA is
summarized as follows:
The Department of Defense is
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to modify the text of DFARS
clause 252.204–7002, Payment for
Subline Items Not Separately Priced, to
simplify and conform the clause text to
current Government contract line item
structure terminology.
The objective of this rule is to clarify
the intent of the clause for contractors,
when submitting invoices under
contracts that contain items that are not
separately priced. The modification of
this DFARS clause supports a
recommendation from the DoD
Regulatory Reform Task Force. No
public comments were received in
response to the initial regulatory
flexibility analysis.
Based on an average of data for fiscal
year 2016 through 2018 from the
Federal Procurement Data System and
Electronic Document Access, DoD
awards approximately 12,435 contracts
annually that includes the DFARS
clause 252.204–7002. Of the 12,435
awards, approximately 4,924 contracts
(40%) are awarded to 1,564 unique
small business entities. Based on the
available data and the objective of the
rule, DoD does not anticipate that this
proposed rule will significantly impact
small business entities. This rule does
not include any new reporting,
recordkeeping, or other compliance
requirements for small businesses. This
rule does not duplicate, overlap, or
conflict with any other Federal rules.
There are no known significant
alternative approaches to the rule that
would meet the stated objectives.
VI. Paperwork Reduction Act
2. Amend section 204.7104–1:
a. In paragraph (b)(3)(iii), by removing
‘‘subsection’’ and adding ‘‘section’’ in
its place; and
■ b. By revising paragraph (b)(3)(iv).
The revision reads as follows:
■
■
204.7104–1
Criteria for establishing.
*
*
*
*
*
(b) * * *
(3) * * *
(iv) When the price for items not
separately priced is included in the
price of another contract line or subline
item, it may be necessary to withhold
payment on the priced contract line or
subline item until the included line or
subline items that are not separately
priced have been delivered. See the
clause at 252.204–7002, Payment for
Contract Line or Subline Items Not
Separately Priced.
■ 3. Revise section 204.7109 to read as
follows:
204.7109
Contract clauses.
(a) Use the clause at 252.204–7002,
Payment for Contract Line or Subline
Items Not Separately Priced, in
solicitations and contracts when the
price for items not separately priced is
included in the price of another contract
line or subline item.
(b) Use the clause at 252.204–7006,
Billing Instructions, in solicitations and
contracts if Section G includes—
(1) Any of the standard payment
instructions at PGI 204.7108(b)(2); or
(2) Other payment instructions, in
accordance with PGI 204.7108(d)(12),
that require contractor identification of
the contract line item(s) on the payment
request.
The rule does not contain any
information collection requirements that
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
PART 252—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
List of Subjects in 48 CFR Parts 204 and
252
252.204–7002 Payment for Contract Line
or Subline Items Not Separately Priced.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense
Acquisition Regulations System.
Payment for Contract Line or Subline
Items Not Separately Priced (APR 2020)
Therefore, 48 CFR parts 204 and 252
are amended as follows:
1. The authority citation for 48 CFR
parts 204 and 252 continues to read as
follows:
■
Authority: 41 U.S.C. 1303 and 48 CFR
chapter 1.
VerDate Sep<11>2014
19:34 Apr 07, 2020
Jkt 250001
4. Revise section 252.204–7002 to
read as follows:
■
As prescribed in 204.7109(a), use the
following clause:
Government procurement.
lotter on DSKBCFDHB2PROD with RULES
PART 204—ADMINISTRATIVE AND
INFORMATION MATTERS
(a) If the schedule in this contract contains
any contract line or subline items identified
as not separately priced (NSP), it means that
the unit price for the NSP line or subline
item is included in the unit price of another,
related line or subline item.
(b) The Contractor shall not invoice the
Government for an item that includes in its
price an NSP item until—
PO 00000
Frm 00042
Fmt 4700
Sfmt 4700
(1) The Contractor has also delivered the
NSP item included in the price of the item
being invoiced; and
(2) The Government has accepted the NSP
item.
(c) This clause does not apply to technical
data.
(End of clause)
252.204–7006
[Amended]
5. Amend section 252.204–7006
introductory text by removing
‘‘204.7109’’ and adding ‘‘204.7109(b)’’
in its place.
■
[FR Doc. 2020–06726 Filed 4–7–20; 8:45 am]
BILLING CODE 5001–06–P
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 212, 232, and 252
[Docket DARS–2019–0025]
RIN 0750–AK25
Defense Federal Acquisition
Regulation Supplement: Prompt
Payments of Small Business
Contractors (DFARS Case 2018–D068)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Final rule.
AGENCY:
DoD is issuing a final rule
amending the Defense Federal
Acquisition Regulation Supplement
(DFARS) to implement a section of the
National Defense Authorization Act for
Fiscal Year 2019 that provides for
accelerated payments to small business
contractors and subcontractors.
DATES: Effective April 8, 2020.
FOR FURTHER INFORMATION CONTACT: Ms.
Jennifer D. Johnson, telephone 571–
372–6100.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
DoD published a proposed rule in the
Federal Register at 84 FR 25225 on May
31, 2019, to implement section 852 of
the National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2019 (Pub.
L. 115–232). Section 852 provides for
accelerated payments to DoD
contractors that are small businesses
and to small business subcontractors by
accelerating payments to their prime
contractors. Thirteen respondents
submitted public comments in response
to the proposed rule.
II. Discussion and Analysis
DoD reviewed the public comments in
the development of the final rule. A
E:\FR\FM\08APR1.SGM
08APR1
]]>Agencies
[Federal Register Volume 85, Number 68 (Wednesday, April 8, 2020)]
[Rules and Regulations]
[Pages 19691-19692]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06726]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 204 and 252
[Docket DARS-2019-0049]
RIN 0750-AK14
Defense Federal Acquisition Regulation Supplement: Modification
of DFARS Clause ``Payment for Subline Items Not Separately Priced''
(DFARS Case 2018-D050)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD is issuing a final rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to modify the text of an
existing DFARS clause to clarify its intent and conform its language to
current DFARS terminology, pursuant to action taken by the Regulatory
Reform Task Force.
DATES: Effective April 8, 2020.
FOR FURTHER INFORMATION CONTACT: Ms. Carrie Moore, telephone 571-372-
6093.
SUPPLEMENTARY INFORMATION:
I. Background
DoD published a proposed rule in the Federal Register at 84 FR
58362 on October 31, 2019, to modify DFARS clause 252.207-7002, Payment
for Subline Items Not Separately Priced, to conform the text of the
clause to the current contract line item structure terminology by
replacing ``contract line item'' with ``contract line or subline item''
and add a prescription for the DFARS clause in the applicable section
of DFARS 204.71. No public comments were received in response to the
proposed rule. No changes are made in the final rule from the proposed
rule.
II. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and for Commercial Items, Including Commercially Available
Off-the-Shelf Items
This rule does not create any new provisions or clauses. The rule
updates language used in the clause text to conform with current
contract line item structure terminology. This rule does not change the
applicability of the affected clause.
III. Executive Orders 12866 and 13563
E.O.s 12866 and 13563 direct agencies to assess all costs and
benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, distributive impacts, and equity). E.O. 13563 emphasizes the
importance of quantifying both costs and benefits, of reducing costs,
of harmonizing rules, and of promoting flexibility. This is not a
significant regulatory action and, therefore, was not subject to review
under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated
September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
IV. Executive Order 13771
This rule is not subject to E.O. 13771, because this rule is not a
significant regulatory action under E.O. 12866.
V. Regulatory Flexibility Act
A final regulatory flexibility analysis (FRFA) has been prepared
consistent with the Regulatory Flexibility Act, 5
[[Page 19692]]
U.S.C. 601, et seq. The FRFA is summarized as follows:
The Department of Defense is amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to modify the text of DFARS
clause 252.204-7002, Payment for Subline Items Not Separately Priced,
to simplify and conform the clause text to current Government contract
line item structure terminology.
The objective of this rule is to clarify the intent of the clause
for contractors, when submitting invoices under contracts that contain
items that are not separately priced. The modification of this DFARS
clause supports a recommendation from the DoD Regulatory Reform Task
Force. No public comments were received in response to the initial
regulatory flexibility analysis.
Based on an average of data for fiscal year 2016 through 2018 from
the Federal Procurement Data System and Electronic Document Access, DoD
awards approximately 12,435 contracts annually that includes the DFARS
clause 252.204-7002. Of the 12,435 awards, approximately 4,924
contracts (40%) are awarded to 1,564 unique small business entities.
Based on the available data and the objective of the rule, DoD does not
anticipate that this proposed rule will significantly impact small
business entities. This rule does not include any new reporting,
recordkeeping, or other compliance requirements for small businesses.
This rule does not duplicate, overlap, or conflict with any other
Federal rules. There are no known significant alternative approaches to
the rule that would meet the stated objectives.
VI. Paperwork Reduction Act
The rule does not contain any information collection requirements
that require the approval of the Office of Management and Budget under
the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Parts 204 and 252
Government procurement.
Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.
Therefore, 48 CFR parts 204 and 252 are amended as follows:
0
1. The authority citation for 48 CFR parts 204 and 252 continues to
read as follows:
Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.
PART 204--ADMINISTRATIVE AND INFORMATION MATTERS
0
2. Amend section 204.7104-1:
0
a. In paragraph (b)(3)(iii), by removing ``subsection'' and adding
``section'' in its place; and
0
b. By revising paragraph (b)(3)(iv).
The revision reads as follows:
204.7104-1 Criteria for establishing.
* * * * *
(b) * * *
(3) * * *
(iv) When the price for items not separately priced is included in
the price of another contract line or subline item, it may be necessary
to withhold payment on the priced contract line or subline item until
the included line or subline items that are not separately priced have
been delivered. See the clause at 252.204-7002, Payment for Contract
Line or Subline Items Not Separately Priced.
0
3. Revise section 204.7109 to read as follows:
204.7109 Contract clauses.
(a) Use the clause at 252.204-7002, Payment for Contract Line or
Subline Items Not Separately Priced, in solicitations and contracts
when the price for items not separately priced is included in the price
of another contract line or subline item.
(b) Use the clause at 252.204-7006, Billing Instructions, in
solicitations and contracts if Section G includes--
(1) Any of the standard payment instructions at PGI 204.7108(b)(2);
or
(2) Other payment instructions, in accordance with PGI
204.7108(d)(12), that require contractor identification of the contract
line item(s) on the payment request.
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
4. Revise section 252.204-7002 to read as follows:
252.204-7002 Payment for Contract Line or Subline Items Not
Separately Priced.
As prescribed in 204.7109(a), use the following clause:
Payment for Contract Line or Subline Items Not Separately Priced (APR
2020)
(a) If the schedule in this contract contains any contract line
or subline items identified as not separately priced (NSP), it means
that the unit price for the NSP line or subline item is included in
the unit price of another, related line or subline item.
(b) The Contractor shall not invoice the Government for an item
that includes in its price an NSP item until--
(1) The Contractor has also delivered the NSP item included in
the price of the item being invoiced; and
(2) The Government has accepted the NSP item.
(c) This clause does not apply to technical data.
(End of clause)
252.204-7006 [Amended]
0
5. Amend section 252.204-7006 introductory text by removing
``204.7109'' and adding ``204.7109(b)'' in its place.
[FR Doc. 2020-06726 Filed 4-7-20; 8:45 am]
BILLING CODE 5001-06-P
