[Federal Register: May 20, 2010 (Volume 75, Number 97)]
[Proposed Rules]
[Page 28228-28229]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20my10-17]
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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: http://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 http://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
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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)).
* * * * *
[FR Doc. 2010-12136 Filed 5-19-10; 8:45 am]
BILLING CODE 6820-EP-S