[Federal Register: December 10, 2009 (Volume 74, Number 236)]
[Rules and Regulations]
[Page 65600-65605]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10de09-21]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 4, 8, 13, 16, 32, and 52
[FAC 2005-38; FAR Case 2006-026; Item II; Docket 2009-0041, Sequence 1]
RIN 9000-AK87
Federal Acquisition Regulation; FAR Case 2006-026, Governmentwide
Commercial Purchase Card Restrictions for Treasury Offset Program Debts
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are issuing a final rule
amending the Federal Acquisition Regulation (FAR) to restrict the use
of the Governmentwide commercial purchase card as a method of payment
for offerors with debts subject to the Treasury Offset Program.
DATES: Effective Date: February 1, 2010.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Mr. Michael Jackson, Procurement Analyst, at (202) 208-4949. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-38, FAR
case 2006-026.
SUPPLEMENTARY INFORMATION:
A. Background
The Debt Collection Improvement Act of 1996 and other statutes
provide the tools for administering a centralized program for the
collection of delinquent, non-tax and tax debts. The Financial
Management Service (FMS), a bureau of the Department of the Treasury,
is charged with implementing the Government's delinquent debt
collection program. Since 1996, FMS has collected more than $24.4
billion in delinquent debt. In fiscal year 2006, collections of
delinquent debt remained at a constant $3.1 billion. To collect
delinquent debts owed to Federal agencies and States, FMS uses the
Treasury Offset Program (TOP). Information on TOP is available at
http://fms.treas.gov/debt/index.html. TOP uses both ``offsets'' and
``continuous levies'' to collect
[[Page 65601]]
delinquent debts. Offset is a process whereby Federal payments are
reduced or ``offset'' to satisfy a person's overdue Federal debt, child
support obligation, or State tax debt. A payee's name and taxpayer
identification number are matched against a Treasury/FMS database of
delinquent debtors for automatic offset of funds. Offset funds are then
used to satisfy payment of the delinquent debt to the extent allowed by
law.
Under the continuous levy program, delinquent Federal tax debts are
collected by levying non-tax payments until the debt is satisfied, as
authorized by the 1997 Taxpayer Relief Act. The continuous levy program
includes levy of some vendor payments (Treasury disbursed and non-
Treasury disbursed payments), Federal employee salary payments, the
Office of Personnel Management retirement payments, and Social Security
benefit payments. Continuous levy is accomplished through a process
almost identical to that of offset. FMS matches delinquent debtor data
with payment record data for automated collection of the debt at the
time of payment, after the delinquent taxpayer has been afforded due
process.
FMS is currently unable to offset or apply a continuous levy to
payments made to contractors with delinquent debts when the
Governmentwide commercial purchase card is used as the method of
payment. When the Governmentwide commercial purchase card is used as
the method of payment, the Government does not make a direct payment to
the contractor. Instead, the Acquiring Bank submits the payment to the
contractor's bank account. Acquiring Banks (also known as Merchant
Banks) are the banks that do business with merchants who accept charge
cards. A merchant has an account with this bank and each day deposits
the value of the day's charge card sales. Acquirers buy (acquire) the
merchant's sales slips and credit the ticket's value to the merchant's
account. The GSA SmartPay[reg] contracted banks are issuing banks and
do not directly pay the merchants.
VISA and Master Card are associations, not banks. VISA and Master
Card are retail electronic payments networks and global financial
services brands. They facilitate global commerce through the transfer
of information among financial institutions, merchants, consumers,
businesses, and Government entities. To assess the significance of the
problem, FMS and VISA matched VISA payments for Governmentwide purchase
card transactions for one year. As a result of the match, FMS
determined that approximately $73.5 million of delinquent debts subject
to collection under TOP were not collected because the debtors were
paid using the Governmentwide commercial purchase card. The individual
payments that otherwise would have been collected were all in excess of
the micro-purchase threshold.
To help increase the collection of delinquent debts owed to the
Government, the rule amends the FAR to require contracting officers to
determine whether the Central Contractor Registration (CCR) indicates
that the contractor has delinquent debt that is subject to collection
under the TOP. If a debt indicator is found, the Governmentwide
commercial purchase card shall not be authorized as a method of
payment. The contracting officer is required to check for the flag at
the time of contract award or order placement or issuance. The rule
also amends the applicable Governmentwide commercial purchase card
payment FAR clause at 52.232-36 to advise contractors that the
Governmentwide commercial purchase card is not authorized as a method
of payment if a debt indicator is included in the CCR for the
contractor. The proposed rule included the requirement for the
contracting officer to check CCR prior to option exercise, but has been
removed by the Councils in the final rule. The Councils removed the
requirement to check CCR prior to option exercise because the proposed
rule language was considered to be a change to the requirement for
exercising an option, which if the method of payment was changed, would
result in a contract change outside the scope of exercising an option.
This rule will not apply to individual travel charge cards or centrally
billed accounts for travel/transportation services.
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 72 FR 74255, December 31, 2007. The comment period closed
on February 29, 2008. The Councils received comments from seven
respondents, one of which was inadvertently sent in error and belonged
to a National Oceanic Atmospheric Administration proposed rule that
followed this rule in the FRN entitled ``Pacific Halibut Fisheries''.
The Councils have made the following changes to the proposed rule:
a. FAR 4.1103(a)(3) of the proposed rule has been modified to
change the sentence structure from ``except when payment by the
Governmentwide commercial purchase card is contemplated (see 32.1108
(b)(2)'') to ``except when use of the Governmentwide commercial
purchase card is contemplated as a method of payment. (See
32.1108(b)(2))''.
b. FAR 8.402(g) was added to the rule to clarify that this rule
does not apply to orders placed at or below the micro-purchase
threshold.
c. FAR 13.201(h) was not in the proposed rule and has been added as
follows: ``When using the Governmentwide commercial purchase card as a
method of payment, purchases at or below the micro-purchase threshold
are exempt from verification in the Central Contractor Registration
(CCR) database as to whether the contractor has a delinquent debt
subject to collection under the Treasury Offset Program (TOP)'' to make
it very clear that purchases under the micro-purchase threshold are
exempt from checking the CCR database for a delinquent debt flag. This
change from the proposed rule is deemed necessary because of the
repeated public comments received on the issue and to provide clarity
that purchases under the micro-purchase threshold are exempt from
checking the CCR database for the delinquent debt flag.
d. FAR 16.505(a)(11) was added to the rule to clarify that this
rule does not apply to orders placed at or below the micro-purchase
threshold.
e. FAR 17.207(f) of the proposed rule which included adding new
subparagraphs (1) and (2) was reinstated as currently in the FAR.
f. FAR 32.1108(b)(2)(i) of the proposed rule has been modified to
delete ``program'' as it was duplicated in the proposed FAR language.
FAR 32.1108(b)(2)(i) was also amended in the final rule to require the
contracting officer to check for the debt flag indicator only if
payment by the Governmentwide purchase card is anticipated and the
contract or order is above the micro-purchase threshold. The
requirement was removed to check the CCR database for the indicator
prior to option exercise.
g. FAR 32.1108(b)(2)(ii) of the proposed rule has been modified to
add language informing contracting officers that contracts to be paid
by purchase card must either include FAR 52.232-33 or FAR 52.232-34, so
that in the event that payment cannot be made by purchase card, the
contractor is aware of the method of payment and the requirements
thereof, i.e., active CCR status.
h. The last sentence of FAR 32.1108(b)(2)(ii) of the proposed rule
which read, ``Contracting officers shall not use the presence of the
delinquent debt indicator to exclude a contractor from receipt of the
contract, order, or exercised option'' is renumbered to be
[[Page 65602]]
FAR 32.1108(b)(2)(iii) and has been modified to correct grammar and
delete the requirement to check CCR for the indicator when exercising
an option.
i. FAR 32.1108(b)(2)(iii) of the proposed rule has been modified to
correct grammar and reflect the new subparagraph ``iv.''
j. Language was added at FAR 32.1110(d) of the rule to inform
contracting officers that contracts to be paid by purchase card must
either include FAR 52.232-33 or FAR 52.232-34, so that in the event
that payment cannot be made by purchase card, the contractor is aware
of the method of payment and the requirements thereof, i.e., active CCR
status.
k. FAR 52.212-5 was added to the rule in order to change the date
of FAR 52.232-36 at paragraph (b)(41). The date of FAR 52.212-5 itself
was also changed.
l. In the proposed rule at FAR 52.232-36(a)(2), the clause read
``The Governmentwide commercial purchase card is not authorized as a
method of payment when the Central Contractor Registration (CCR)
indicates that the Contractor has delinquent debt...'' In the final
rule the word ``when'' is being replaced with ``during any period'' so
that the beginning of FAR 52.232-36 (a)(2) now reads as follows: ``The
Governmentwide commercial purchase card is not authorized as a method
of payment during any period the Central Contractor Registration (CCR)
indicates that the Contractor has delinquent debt...'' The change from
``when'' in the proposed rule to ``during any period'' in the final
rule is done for clarification to make it clear that the contracting
officer shall not authorize the use of the commercial purchase card for
payment at any time when the CCR registration shows that the contractor
has delinquent debt that is subject to collection under TOP.
The basis for each change and analysis of all public comments
follows.
1. Comment: One respondent commented that this rule should exclude
Government card purchases made under the simplified acquisition
procedures because non-contracting officers will not consistently check
the CCR database for the debt collection flag.
Response: The FAR change is applicable to all acquisitions that
include the CCR clauses (FAR 52.204-7 or FAR 52.212-4(t)). The only
exclusions are in FAR 4.1102. Forcing personnel that have been
designated as cardholders, but are not contracting officers, to perform
the check for the debt flag indicator in the CCR database could be
administratively burdensome and may potentially curtail card usage.
When the Governmentwide commercial purchase card is used as a method of
payment for purchases above the micro-purchase threshold then
contracting officers (COs) are required to check in the CCR database to
see if there is a delinquent debt flag identified for the contractor.
This has been further clarified with the added language in FAR
13.201(h). In addition, language has been added to the FAR text at FAR
8.402 and FAR 16.505, clarifying that when placing orders at or below
the micro-purchase threshold, CCR does not have to be checked for the
debt flag indicator.
2. Comment: One respondent commented that the proceeds of
simplified acquisition procedures are unlikely to make a serious dent
in the indebtedness of businesses.
Response: The $73.5 million is a yearly total for the
Governmentwide commercial purchase cards only and is considered
significant. This remedy is directed specifically at Government
contractors who owe delinquent debt, yet continue to do business with
the Government. Collections of $73.5 million per year represent a
significant portion of the debt owed by this population. In addition,
the collection of the $3.1 billion is being pursued utilizing other
mechanisms.
3. Comment: Five respondents recommended this rule be applicable
only to purchases above the micro-purchase threshold. One questioned
whether the requirement to check CCR was applicable to orders placed on
GSA Advantage or DoD eMall by a purchase cardholder who is not a
warranted contracting officer.
Response: The Councils agree that purchases at or below the micro-
purchase threshold are excluded from the requirement to check the CCR
database for the debt flag indicator when using the Governmentwide
commercial purchase card as a method of payment. FAR 13.201(h) has been
added to make it very clear that the CCR database is not required to be
checked for the delinquent debt flag whenever the purchase is below the
micro-purchase threshold. In addition, language has been added at FAR
8.402 and FAR 16.505, to make it clear that the CCR database is
required to be checked for the delinquent debt flag whenever the order
is above the micro-purchase threshold when the Governmentwide
commercial purchase card is used as a method of payment by a
contracting officer.
4. Comment: One respondent stated that ``it would also be nice if
GSA contracts specify that payments may not be made through the charge
card for existing and new contracts.''
Response: The responsibility to include the FAR clause at 52.232-36
is whenever the purchase card will be used as a method of payment under
a contract as outlined in the prescription in FAR 32.1110(d). The
responsibility to check the CCR database for GSA contractors with a
delinquent debt flag is a requirement and a duty of the GSA contracting
officer prior to award of a contract or issuance or placement of an
order. It is the responsibility of the ordering agency/office
contracting officer to check the CCR database for contractors with a
delinquent debt flag prior to placing an order against a GSA schedule
contract when the purchase is above the micro-purchase threshold and
when the Governmentwide commercial purchase card is used as the method
of payment.
5. Comment: One respondent expressed concern about the burden on
the contracts/procurement folks of the Government and stated that if
the Government really wanted to solve the problem the Government would
automate the VISA/Governmentwide commercial purchase card system to
perform the debt collection offset.
Response: It is within the discretion of the Government to assign
duties to Government employees in order to achieve the Government's
policies.
The Federal Contractor Tax Compliance (FCTC) task force and a
purchase card subgroup extensively studied and determined that blocking
Federal payment to delinquent contractors that way is not an option.
According to industry members, the current commercial Merchant Category
Code blocking process and authorization and transactions settlement
processes do not have the capabilities to block transactions for
individual vendors. Therefore blocking transactions at the point of
sale for merchants that are delinquent on their taxes is not feasible.
Currently there are no commercial systems available that have the
technological capability to subject specific purchase card payments to
the Federal Payment Levy Program (FPLP). Therefore, it has been
determined that it is not currently possible or feasible to implement
automating the offset of Governmentwide commercial purchase card
payments within the VISA/Governmentwide Purchase Card system.
6. Comment: One respondent questioned whether transactions below
the micro-purchase threshold were studied.
Response: The Financial Management Service within the U.S.
Department of
[[Page 65603]]
Treasury did study those transactions below the micro-purchase
threshold level and the Program Director of the GSA Office of Charge
Card Management has stated that while purchases below the micro-
purchase threshold represent a large percentage of the volume of
purchase card transactions, they represent a relatively small
percentage of the dollars expended and not worthy of the administrative
burden of checking the CCR database for the debt collection flag.
7. Comment: One respondent questioned whether changing the payment
method would put an awkward burden on the front-line folks.
Response: The requirement to check the CCR database at contract
award or order placement or issuance, should be completed in advance so
that the payment mechanism could be worked out between the parties. In
addition, the Contractor may choose to pay their delinquent debt rather
than change the payment method. If the contractor pays the debt, the
debt flag will be removed from the CCR database, and this will enable
the use of the Governmentwide commercial purchase card as a method of
payment. Otherwise, other alternate payment methods/clauses will have
to be utilized because the use of the Governmentwide commercial
purchase card is prohibited as a payment method if a debt flag is
identified for the contractor in the CCR database.
8. Comment: One respondent asked what the contracting officer
should do if there is no CCR registration or it is inactive when a
contracting officer attempts to place an order or exercise an option.
Response: The contracting officer should plan well in advance of
awarding a contract or placing or issuing an order by checking the CCR
database to ensure the contractor registration has not expired. If it
has expired, then the contracting officer should encourage the
contractor/offeror to renew their registration in CCR prior to placing
the order as required by their respective contract or agreement. By now
all contractors should have registered in CCR unless they were given an
exception. The contracting officer for an order for which there is no
CCR registration should assume the contractor was given an exception at
the time of contract award and so need not worry about checking for the
flag. The proposed rule requirement for the contracting officer to
check CCR prior to option exercise has been removed by the Councils in
the final rule.
9. Comment: One respondent asked what contracting officers are
supposed to do if the instant acquisition is exempt from being
registered in the CCR database.
Response: If the instant acquisition is exempt from CCR as outlined
in FAR 4.1102 then the contracting officer does not have to check CCR
for registration. However, if the acquisition is not exempt as
prescribed by FAR 4.1102, the contracting officer must make efforts to
encourage the contractor/offeror to register in CCR or the offeror will
not be permitted to receive an award.
10. Comment: One respondent commented that the FAR clause at
52.232-36, Payments by Third Party, should be a required clause when
payment by the purchase card is contemplated and therefore, the
prescription should be modified as the clause shall be required because
it is not discretionary.
Response: The Councils agree the clause is not discretionary and
believe it is clear in the prescription of the clause at FAR
32.1110(d).
11. Comment: One respondent commented that the CCR database has not
yet implemented the Federal Debt Flag functionality in the public
search record.
Response: The CCR database has been modified to include the debt
flag indicator and will be fully operational and accessible by the time
this case is issued as a final rule.
12. Comment: A respondent questioned the inappropriate terms used
in the preamble to the proposed rule in the statements ``instead, the
processing bank for the Governmentwide commercial purchase card pays
the contractor'' and ``To assess the significance of the problem, FMS
and Visa, one of the processing banks...''.
The respondent asserted that the Acquiring Bank submits the payment
to the contractor's bank account. The GSA SmartPay[reg] contracted
banks are issuing banks and do not directly pay the merchants.
Acquiring Banks (a.k.a. Merchant Banks) are the banks that do business
with merchants who accept charge cards. A merchant has an account with
this bank and each day deposits the value of the day's charge card
sales. Acquirers buy (acquire) the merchant's sales slips and credit
the ticket's value to the merchant's account. VISA is an Association,
not a bank. VISA is a retail electronic payments network and global
financial services brand. It facilitates global commerce through the
transfer of information among financial institutions, merchants,
consumers, businesses, and Government entities.
Response: The Councils agree, with the exception that not only
VISA, but Master Card also is an Association, the Background section of
the proposed rule contained an erroneous statement.
13. Comment: One respondent stated that, ``Our primary objection to
the proposed rule is the use of delinquent debts reported under the
Treasury Offset Program as a basis for restricting use of a
Governmentwide commercial purchase card as a method of payment to
contractors. We believe many of the debts reported under TOP are highly
inaccurate and do not satisfy the requirements of the Debt Collections
Improvement Act of 1996. When the statute was enacted in 1996, it
contained a requirement to notify contractors of claims established
under the Act. The processes and systems established to notify
contractors failed to comply with the statutory notification required.
There have been many reports of cases where withholds have been taken
in error and cases where advance notice of intent to withhold was not
received by a responsible individual in the employ of the company.''
Response: Before a nontax debt may be submitted to the Treasury
Offset Program for collection by offset, agencies must certify to
Treasury that the debt is valid and that all due process requirements
have been met (31 CFR 285.5(c)(6)). These due process requirements
include notice and an opportunity to dispute the debt (31 U.S.C. 3716).
Actual receipt of the notice by the debtor is not required provided the
agency has made a reasonable attempt to notify the debtor. Debtors are
afforded notice and an opportunity to dispute debts prior to an offset
or levy under the Treasury Offset Program. In the case of tax debts,
the notice requirements contained in the Internal Revenue Code are
followed. Additionally, when an offset or levy occurs, a notice is sent
to the debtor that includes contact information to address any concerns
regarding the offset or levy.
14. Comment: One respondent stated that the inaccurate tax
information could lead to erroneous award decisions by contracting
officers.
Response: This rule does not impact contract award decisions by
contracting officers. The rule precludes the use of the Governmentwide
commercial purchase card as a method of payment only and does not
affect the award.
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.
[[Page 65604]]
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 rule only impacts
the method by which a contractor can be paid when the contractor has a
delinquent debt.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the 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 Parts 4, 8, 13, 16, 32, and 52
Government procurement.
Dated: November 30, 2009.
Al Matera,
Director, Acquisition Policy Division.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 4, 8, 13, 16, 32, and
52 as set forth below:
0
1. The authority citation for 48 CFR parts 4, 8, 13, 16, 32, and 52
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).
PART 4--ADMINISTRATIVE MATTERS
0
2. Amend section 4.1103 by revising paragraph (a)(3) to read as
follows:
4.1103 Procedures.
(a) * * *
(3) Need not verify registration before placing an order or call if
the contract or agreement includes the clause at 52.204-7, or 52.212-
4(t), or a similar agency clause, except when use of the Governmentwide
commercial purchase card is contemplated as a method of payment. (See
32.1108(b)(2)).
* * * * *
PART 8--REQUIRED SOURCES OF SUPPLIES AND SERVICES
0
3. Amend section 8.402 by adding paragraph (g) to read as follows:
8.402 General.
* * * * *
(g) When using the Governmentwide commercial purchase card as a
method of payment, orders at or below the micro-purchase threshold are
exempt from verification in the Central Contractor Registration (CCR)
database as to whether the contractor has a delinquent debt subject to
collection under the Treasury Offset Program (TOP).
0
4. Revise section 8.405-7 to read as follows:
8.405-7 Payment.
Agencies may make payments for oral or written orders by any
authorized means, including the Governmentwide commercial purchase card
(but see 32.1108(b)(2)).
PART 13--SIMPLIFIED ACQUISITION PROCEDURES
0
5. Amend section 13.003 by revising paragraph (e) to read as follows:
13.003 Policy.
* * * * *
(e) Agencies shall use the Governmentwide commercial purchase card
and electronic purchasing techniques to the maximum extent practicable
in conducting simplified acquisitions (but see 32.1108(b)(2)).
* * * * *
0
6. Amend section 13.201 by adding paragraph (h) to read as follows:
13.201 General.
* * * * *
(h) When using the Governmentwide commercial purchase card as a
method of payment, purchases at or below the micro-purchase threshold
are exempt from verification in the Central Contractor Registration
(CCR) database as to whether the contractor has a delinquent debt
subject to collection under the Treasury Offset Program (TOP).
0
7. Amend section 13.301 by revising the first sentence of paragraph (a)
and (c)(3) to read as follows:
13.301 Governmentwide commercial purchase card.
(a) Except as provided in 32.1108(b)(2), the Governmentwide
commercial purchase card is authorized for use in making and/or paying
for purchases of supplies, services, or construction. * * *
* * * * *
(c) * * *
(3) Make payments, when the contractor agrees to accept payment by
the card (but see 32.1108(b)(2)).
PART 16--TYPES OF CONTRACTS
0
8. Amend section 16.505 by adding paragraph (a)(11) to read as follows:
16.505 Ordering.
(a) * * *
(11) When using the Governmentwide commercial purchase card as a
method of payment, orders at or below the micro-purchase threshold are
exempt from verification in the Central Contractor Registration (CCR)
database as to whether the contractor has a delinquent debt subject to
collection under the Treasury Offset Program (TOP).
* * * * *
PART 32--CONTRACT FINANCING
0
9. Amend section 32.1108 by revising paragraph (b) to read as follows:
32.1108 Payment by Governmentwide commercial purchase card.
* * * * *
(b)(1) Written contracts to be paid by purchase card should include
the clause at 52.232-36, Payment by Third Party, as prescribed by
32.1110(d). However, payment by a purchase card also may be made under
a contract that does not contain the clause to the extent the
contractor agrees to accept that method of payment.
(2)(i) When it is contemplated that the Governmentwide commercial
purchase card will be used as the method of payment, and the contract
or order is above the micro-purchase threshold, contracting officers
are required to verify (by looking in the Central Contractor
Registration (CCR)) whether the contractor has any delinquent debt
subject to collection under the Treasury Offset Program (TOP) at
contract award and order placement. Information on TOP is available at
http://fms.treas.gov/debt/index.html.
(ii) The contracting officer shall not authorize the Governmentwide
commercial purchase card as a method of payment during any period the
CCR indicates that the contractor has delinquent debt subject to
collection under the TOP. In such cases, payments under the contract
shall be made in accordance with the clause at 52.232-33, Payment by
Electronic Funds Transfer--Central Contractor Registration, or 52.232-
34, Payment by Electronic Funds Transfer--Other Than Central Contractor
Registration, as appropriate (see FAR 32.1110(d)).
(iii) Contracting officers shall not use the presence of the CCR
debt flag indicator to exclude a contractor from receipt of the
contract award or issuance or placement of an order.
(iv) The contracting officer may take steps to authorize payment by
Governmentwide commercial purchase card when a contractor alerts the
contracting officer that the CCR debt flag
[[Page 65605]]
indicator has been changed to no longer show a delinquent debt.
* * * * *
0
10. Amend section 32.1110 by adding a new sentence to the end of
paragraph (d) to read as follows:
32.1110 Solicitation provision and contract clauses.
* * * * *
(d) * * * When the clause at 52.232-36 is included in a
solicitation or contract, the contracting officer shall also insert the
clause at 52.232-33, Payment by Electronic Funds Transfer--Central
Contractor Registration, or 52.232-34, Payment by Electronic Funds
Transfer--Other Than Central Contractor Registration, as appropriate.
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
11. Amend section 52.212-5 by revising the date of the clause and
paragraph (b)(40) to read as follows:
52.212-5 Contract Terms and Conditions Required to Implement Statutes
or Executive Orders--Commercial Items.
* * * * *
CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR
EXECUTIVE ORDERS--COMMERCIAL ITEMS (FEB 2010)
* * * * *
(b) * * *
------(40) 52.232-36, Payment by Third Party (FEB 2010) (31
U.S.C. 3332).
* * * * *
0
12. Amend section 52.232-36 by revising the date of the clause and
paragraphs (a) and (b) to read as follows:
52.232-36 Payment by Third Party.
* * * * *
PAYMENT BY THIRD PARTY (FEB 2010)
(a) General. (1) Except as provided in paragraph (a)(2) of this
clause, the Contractor agrees to accept payments due under this
contract, through payment by a third party in lieu of payment
directly from the Government, in accordance with the terms of this
clause. The third party and, if applicable, the particular
Governmentwide commercial purchase card to be used are identified
elsewhere in this contract.
(2) The Governmentwide commercial purchase card is not
authorized as a method of payment during any period the Central
Contractor Registration (CCR) indicates that the Contractor has
delinquent debt that is subject to collection under the Treasury
Offset Program (TOP). Information on TOP is available at http://
fms.treas.gov/debt/index.html. If the CCR subsequently indicates
that the Contractor no longer has delinquent debt, the Contractor
may request the Contracting Officer to authorize payment by
Governmentwide commercial purchase card.
(b) Contractor payment request. (1) Except as provided in
paragraph (b)(2) of this clause, the Contractor shall make payment
requests through a charge to the Government account with the third
party, at the time and for the amount due in accordance with those
clauses of this contract that authorize the Contractor to submit
invoices, contract financing requests, other payment requests, or as
provided in other clauses providing for payment to the Contractor.
(2) When the Contracting Officer has notified the Contractor
that the Governmentwide commercial purchase card is no longer an
authorized method of payment, the Contractor shall make such payment
requests in accordance with instructions provided by the Contracting
Officer during the period when the purchase card is not authorized.
* * * * *
[FR Doc. E9-28930 Filed 12-9-09; 8:45 am]
BILLING CODE 6820-EP-S