[Federal Register Volume 59, Number 47 (Thursday, March 10, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-4394]
[[Page Unknown]]
[Federal Register: March 10, 1994]
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DEPARTMENT OF DEFENSE
48 CFR Parts 32 and 52
[FAC 90-20; FAR case 92-46; Item XIII]
RIN 9000-AF41
Federal Acquisition Regulation; Prompt Payment Overseas
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule with request for comment.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on an interim rule amending
the Federal Acquisition Regulation (FAR) to reflect a decision by the
Armed Services Board of Contract Appeals that the Prompt Payment Act
applies to overseas contracts.
DATES: Effective Date: March 10, 1994. Comment Date:, Comments should
be submitted to the FAR Secretariat at the address shown below on or
before May 9, 1994, to be considered in the formulation of a final
rule.
ADDRESSES: Interested parties should submit written comments to:
General Services Administration, FAR Secretariat (VRS), 18th & F
Streets NW., room 4037, Attn: Ms. Beverly Fayson, Washington, DC 20405.
Please cite FAC 90-20, FAR case 92-46 in all correspondence related
to this case.
FOR FURTHER INFORMATION CONTACT:
Mr. Jeremy F. Olson at (202) 501-3221 in reference to this FAR case.
For general information, contact the FAR Secretariat, room 4037, GS
Building, Washington, DC 20405 (202) 501-4755. Please cite FAC 90-20,
FAR case 92-46.
SUPPLEMENTARY INFORMATION:
A. Background
On January 13, 1992, the Armed Services Board of Contract Appeals
(ASBCA), in Held & Francke Baukittengesellschaft (ASBCA Nos. 42463 and
42464), held that FAR 32.901 improperly excluded applicability of the
Prompt Payment Act (31 U.S.C. 3901, et seq.) to contracts awarded to
foreign contractors for work performed outside the United States. As a
result of the ASBCA decision, the Councils have agreed on an interim
rule which, in effect, makes the Government liable for payment of
interest and interest penalties under the Act for contracts with
foreign contractors for work performed or supplies delivered overseas.
Section 32.901 and the clauses at 52.232-25, 52.232-26, and 52.232-
27 are amended to remove the statements that no interest penalty will
be paid on contracts awarded to foreign vendors outside the United
States for work performed outside the United States and to remove the
definition of ``foreign vendor'' from the clauses.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601, et seq., applies, but
the interim rule will not significantly impact a substantial number of
small entities within the meaning of the Act. The rule only applies to
contracts with foreign contractors for work performed overseas by
extending the Government's liability to pay interest and penalties
under the Prompt Payment Act to such entities. An Initial Regulatory
Flexibility Analysis has, therefore, not been performed. Comments from
small entities concerning the affected FAR subpart will be considered
in accordance with 5 U.S.C. 610; however, such comments must be
submitted separately and cite 5 U.S.C. 601, et seq. (FAC 90-20, FAR
case 91-46), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the amendments
to the FAR do not impose recordkeeping or information collection
requirements, or collection of information from offerors, contractors,
or members of the public which require the approval of OMB under 44
U.S.C. 3501, et seq.
D. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DOD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that compelling reasons exist to promulgate this interim rule
without prior opportunity for public comment. This action is necessary
because it is essential that uniform guidance on application of the
board decision be issued in the FAR.
List of Subjects in 48 CFR Parts 32 and 52
Government procurement.
Dated: February 15, 1994.
Albert A. Vicchiolla,
Director, Office of Federal Acquisition Policy.
Therefore, 48 CFR parts 32 and 52 are amended 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. Section 32.901 is revised to read as follows:
32.901 Applicability.
This subpart applies to all Government contracts (including small
purchases as defined in subpart 13.1), except contracts with payment
terms and late payment penalties established by other governmental
authority (e.g., tariffs).
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.232-25 [Amended]
3. Section 52.232-25 is amended in the clause heading by removing
``(SEP 1992)'' and inserting ``(MAR 1994)'' in its place; removing the
last sentence of the introductory text of the clause and the last
sentence of the introductory text of paragraph (a)(5) of the clause.
52.232-26 [Amended]
4. Section 52.232-26 is amended in the clause heading by removing
``(APR 1989)'' and inserting ``(MAR 1994)'' in its place; removing the
last sentence of the introductory text of the clause and the last
sentence of the introductory text in paragraph (a)(4) of the clause.
52.232-27 [Amended]
5. Section 52.232-27 is amended in the clause heading by removing
``(APR 1989)'' and inserting ``(MAR 1994)'' in its place; removing the
last sentence of the introductory text of the clause and the last
sentence of the introductory text in paragraph (a)(3) of the clause.
[FR Doc. 94-4394 Filed 3-9-94; 8:45 am]
BILLING CODE 6820-34-M
