[Federal Register Volume 76, Number 48 (Friday, March 11, 2011)]
[Proposed Rules]
[Pages 13329-13330]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-5502]
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GENERAL SERVICES ADMINISTRATION
48 CFR Part 532
[GSAR Case 2010-G509; Docket 2011-0009; Sequence 1]
RIN 3090-AJ13
Reinstatement of Coverage Pertaining to Final Payment Under
Construction and Building Services
AGENCY: Office of Acquisition Policy, General Services Administration
(GSA).
ACTION: Proposed rule.
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SUMMARY: GSA is proposing to amend the General Services Administration
Acquisition Regulation (GSAR) to amend the GSAR to restore guidance on
making final payments under construction and building service contracts
to ensure contractors are paid in accordance with their contract
requirements and not overpaid or receive improper payments for work
performed. This guidance, which prescribed the use of GSA Form 1142,
Release of Claims, for releases of claims under construction and
building service contracts, was inadvertently deleted as part of the
Rewrite of GSAR regulations on Contract Financing. GSA Contracting
Officers have used this form to achieve uniformity and consistency in
the release of claims process.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat on or before May 10, 2011 to be considered in
the formulation of a final rule.
ADDRESSES: Submit comments identified by GSAR Case 2010-G509 by any of
the following methods:
Regulations.gov: http://www.regulations.gov.
Submit comments via the Federal eRulemaking portal by inputting
``GSAR Case 2010-G509'' under the heading ``Enter Key Word or ID''.
Follow the instructions provided to ``Submit a Comment''. Please
include your name, company name (if any), and ``GSAR Case 2010-G509''
on your attached document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat, 1275 First Street, NE., 7th Floor, ATTN: Hada Flowers,
Washington, DC 20417.
Instructions: Please submit comments only and cite GSAR Case 2010-
G509 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: For clarification of content, contact
Mr. Edward N. Chambers at (202) 501-3221, or by e-mail at
[email protected]. For information pertaining to the status or
publication schedules, contact the Regulatory Secretariat, 7th Floor,
GS Building, Washington, DC 20417, (202) 501-4755. Please cite GSAR
Case 2010-G509.
SUPPLEMENTARY INFORMATION:
A. Background
A release of claims is a requirement under GSAR clause 552.232-72,
Final Payment, precedent to making final payment under construction and
building service contracts. Prior to deleting the form, GSA Contracting
Officers relied upon GSA Form 1142 to obtain the release of claims
under these contracts. However, GSAR 532.905-71 which prescribed the
use of GSA Form 1142 for releases of claims under construction and
building service contracts was inadvertently deleted as part of the
Rewrite of GSAR Part 532, Contract Financing published in the Federal
Register at 74 FR 54915, on October 29, 2009, GSAR Case 2006-G515. GSAR
532.905-71 also provided guidance on deductions to final payments under
construction and building service contracts.
GSA Form 1142, Release of Claims, uses standard language for
contractors to attest that is has no claims, or no claims except for
those they may set forth where indicated on the form. The form requires
a signature from the contractor and a witness. Additionally, there is a
location for the firm's seal.
GSA believes that GSA Form 1142 provides great value and
accountability in providing uniformity and consistency for the release
of claims process. Without the GSA Form 1142, GSA Contracting Officers
will be required to verify that contractor release of claims letter
includes appropriate wording before final payment is made, resulting in
their devotion of considerable additional resources to this process.
Further, the coverage on deductions under GSAR 532.905-71 was useful in
preventing overpayments to contractors consistent with the
Administration Improper Payments Elimination and Recovery Act and OMB
efforts to eliminate improper payments.
Consequently, GSA proposes to amend the GSAR to restore the
coverage at GSAR 532.905-71. Since the referenced GSAR Rewrite of Part
532 (74 FR 54915) also deleted GSAR 532.905-70, this coverage will be
restored at GSAR 532.905-70 vice GSAR 532.905-71.
[[Page 13330]]
B. Executive Order 12866 and 13563
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. In accordance with Executive Order
13563, Improving Regulation and Regulatory Review, dated January 18,
2011, GSA has determined that this rule is not excessively burdensome
to the public, and that GSA Form 1142 which is prescribed by the rule
is useful to contractors in presenting their release of claims to the
Government.
C. Regulatory Flexibility Act
The General Services Administration does 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 the rule requires the collection of the
information that is administrative in nature. Submission of this
information should not be burdensome to the contractor but should
provide a consistent format that the contractor can use to report their
claims information to the GSA. An Initial Regulatory Flexibility
Analysis has, therefore, not been performed. We invite comments from
small businesses and other interested parties. GSA will consider
comments from small entities concerning the affected GSAR Part 532 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. (GSAR case
2010-G509), in correspondence.
D. Paperwork Reduction Act
The Paperwork Reduction Act does apply; however, these changes to
the GSAR do not impose additional information collection requirements
to the paperwork burden previously approved under OMB Control Number
3090-0080.
List of Subjects in 48 CFR Part 532
Government procurement.
Dated: March 7, 2011.
Millisa Gary,
Acting Director, Office of Governmentwide Acquisition Policy.
Therefore, GSA proposes to amend 48 CFR part 532 as set forth
below:
PART 532--CONTRACT FINANCING
1. The authority citation for 48 CFR part 532 continues to read as
follows:
Authority: 40 U.S.C. 121(c).
2. Add section 532.905-70 to read as follows:
532.905-70 Final payment--construction and building service contracts.
The following procedures apply to construction and building service
contracts:
(a) The Government shall pay the final amount due the Contractor
under this contract after the documentation in FAR 52.232-5 is
provided.
(b) Contracting Officers may not process the final payment on
construction or building service contracts until the contractor submits
a properly executed GSA Form 1142, Release of Claims, except as
provided in paragraph (c) of this section.
(c) In cases where, after 60 days from the initial attempt, the
Contracting Officer is unable to obtain a release of claims from the
contractor, the final payment may be processed with the approval of
assigned legal counsel.
(d) The amount of final payment must include, as appropriate,
deductions to cover any of the following:
(1) Liquidated damages for late completion.
(2) Liquidated damages for labor violations.
(3) Amount withheld for improper payment of labor wages.
(4) The amount of unilateral change orders covering defects and
omissions.
[FR Doc. 2011-5502 Filed 3-10-11; 8:45 am]
BILLING CODE 6820-61-P