[Federal Register: November 14, 2001 (Volume 66, Number 220)]
[Proposed Rules]
[Page 57293-57295]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14no01-28]
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Part IV
Department of Defense
General Services Administration
National Aeronautics and Space Administration
48 CFR Parts 32 and 152
Federal Acquisition Regulation; Progress Payment Requests Under
Indefinite-Delivery Contracts; Proposed Rule
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 32 and 52
[FAR Case 2001-006]
RIN 9000-AJ23
Federal Acquisition Regulation; Progress Payment Requests Under
Indefinite-Delivery 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 require, under indefinite-
delivery contracts, the contractor to account for and submit progress
payment requests under individual orders as if each order constitutes a
separate contract, unless otherwise specified in the contract.
DATES: Interested parties should submit comments in writing on or
before January 14, 2002 to be considered in the formulation of a final
rule.
ADDRESSES: Submit written comments to: General Services Administration,
FAR Secretariat (MVP), 1800 F Street, NW., Room 4035, ATTN: Laurie
Duarte, Washington, DC 20405.
Submit electronic comments via the Internet to: farcase.2001-
006@gsa.gov. Please submit comments only and cite FAR case 2001-006 in
all correspondence related to this case.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC 20405, at (202) 501-4755 for information
pertaining to status or publication schedules. For clarification of
content, contact Jeremy Olson, Procurement Analyst, at (202) 501-3221.
Please cite FAR case 2001-006.
SUPPLEMENTARY INFORMATION:
A. Background
FAR 32.503-5(c) provides that under indefinite-delivery contracts,
the contracting officer should administer progress payments made under
each individual order as if the order constituted a separate contract,
unless agencies provide otherwise. However, there is no related
language in the clause at FAR 52.232-16, Progress Payments.
The language in FAR 32.503-5(c) recognizes that funds on
indefinite-delivery contracts are normally obligated on each individual
order; deliveries and contract performance, which factor into progress
payment calculations, are monitored at the order level, as opposed to
the basic contract level; and that progress payments normally are
administered at the order level. However, there is currently an
inconsistency between the direction to the contracting officer at FAR
32.503-5(c) and the provisions binding on the contractor in FAR 52.232-
16.
This proposed rule revises--
FAR 32.503-5, Administration of progress payments, to
require, when the indefinite-delivery contract will be administered by
an agency other than the awarding agency, the contracting officer to
coordinate with the contract administration office if the
administration of progress payments will be on a basis other than
order-by-order; and
FAR 52.232-16, Progress payments, to require the
contractor to account for and submit progress payment requests under
individual orders in indefinite-delivery contracts as if each order
constitutes a separate contract, unless otherwise specified in the
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 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 most contracts awarded to small entities have a dollar value
less than the simplified acquisition threshold, and, therefore, do not
have the progress payment type of financing. An Initial Regulatory
Flexibility Analysis has, therefore, 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 Parts 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 2001-006), 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 Parts 32 and 52
Government procurement.
Dated: November 5, 2001.
Al Matera,
Director, Acquisition Policy Division.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 32 and
52 as set forth below:
1. The authority citation for 48 CFR parts 32 and 52 continues to
read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 32--CONTRACT FINANCING
2. Revise paragraph (c) of section 32.503-5 to read as follows:
32.503-5 Administration of progress payments.
* * * * *
(c) Under indefinite-delivery contracts, the contracting officer
should administer progress payments made under each individual order as
if the order constituted a separate contract, unless agency procedures
provide otherwise. When the contract will be administered by an agency
other than the awarding agency, the contracting officer must coordinate
with the contract administration office if the awarding agency wants
the administration of progress payments to be on a basis other than
order-by-order.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
3. Amend 52.232-16 by--
a. Revising the clause date;
b. Adding paragraph (l);
c. Revising the introductory text of Alternate II;
d. Redesignating paragraphs (l) and (m) of Alternate II as (m) and
(n) respectively;
e. Revising the introductory text of the newly designated (m),
paragraphs (m)(3) and (n);
f. Revising the introductory text of Alternate III; and
g. Redesignating paragraph (l) of Alternate III as paragraph (m).
52.232-16 Progress Payments.
As prescribed in 32.502-4(a), insert the following clause:
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PROGRESS PAYMENTS [DATE]
* * * * *
(l) Progress Payments under indefinite-delivery contracts. The
Contractor shall account for and submit progress payment requests
under individual orders as if the order constituted a separate
contract, unless otherwise specified in this contract.
(End of clause)
* * * * *
Alternate II (DATE). If the contract is a letter contract, add
paragraphs (m) and (n). The amount specified in paragraph (n) must
not exceed 80 percent of the maximum liability of the Government
under the letter contract. The contracting officer may specify
separate limits for separate parts of the work.
(m) The Contracting Officer will liquidate progress payments
made under this letter contract, unless previously liquidated under
paragraph (b) of this clause, using the following procedures:
(1) * * *
(2) * * *
(3) If this letter contract is partly terminated and partly
superseded by a contract, the Government will allocate the
unliquidated progress payments to the terminated and unterminated
portions as the Government deems equitable, and will liquidate each
portion under the relevant procedure in paragraphs (m)(1) and (m)(2)
of this clause.
* * * * *
(n) The amount of unliquidated progress payments will not exceed
____________ (specify dollar amount).
Alternate III (DATE). As prescribed in 32.502-4(d), add the
following paragraph (m) to the basic clause. If Alternate II is also
being used, redesignate the following paragraph as paragraph (o):
* * * * *
[FR Doc. 01-28230 Filed 11-13-01; 8:45 am]
BILLING CODE 6820-EP-P