E8-11124. Transporter Proof of Delivery

AGENCY:

Department of Defense.

ACTION:

Proposed rule.

SUMMARY:

This rule proposes to provide an additional method for documenting customer receipt of DLA supplies and services in support of the contract acceptance and payment process by allowing contractor input of receipt documentation into the Department of Defense Wide Area Workflow system.

DATES:

Consideration will be given to all comments received July 18, 2008.

ADDRESSES:

You may submit comments, identified by docket number and or Regulatory Information Number (RIN) number and title, by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Mail: Federal Docket Management System Office, 1160 Defense Pentagon, Washington, DC 20301-1160.

Instructions: All submissions received must include the agency name and docket number or RIN for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT:

Charlene Baez, [phone], [e-mail].

SUPPLEMENTARY INFORMATION:

Executive Order 12866, “Regulatory Planning and Review”

It has been determined that 48 CFR part 5432 is not a significant regulatory action. The rule does not:

(1) Have an annual effect to the economy of $100 million or more or adversely affect in a material way the economy; a section of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.

Section 202, Public Law 104-4, “Unfunded Mandates Reform Act”

It has been certified that this rule does not contain a Federal mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.

Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. 601)

It has been certified that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities.

The implementation of this rule will facilitate the receipt documentation process and enhance the accountability of DLA-provided goods, as well as provide a basis for more efficient and expeditious payments to affected contractors. In this process, contractors input copies of signed delivery documents provided by the transporter of the supplies into the Wide Area Workflow system. Contractor use of the Wide Area Workflow (WAWF) system is being implemented throughout the Department of Defense for submission of invoices. Approximately 1 hour is needed to learn the new system. Use of the WAWF system does not require any additional reporting, recordkeeping, or compliance records from small entities. Therefore no additional capability or resource expenditure will be required and no significant impact is anticipated.

Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35)

It has been certified that this rule does impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.

Executive Order 13132, “Federalism”

It has been certified that this rule does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:

(1) The States;

(2) The relationship between the National Government and the States; or

(3) The distribution of power and responsibilities among the various levels of government.

List of Subjects in 48 CFR Part 5432

• Contract delivery receipt process

Accordingly, title 48 CFR Chapter 54, is proposed to be amended to add part 5432 to read as follows:

PART 5432—TRANSPORTER PROOF OF DELIVERY

5432.1

Payment documentation process.

5432.2

Transporter proof of delivery.

Authority: 41 U.S.C. 401 et seq.

§ 5432.1

Payment documentation process.

(a) Transporter Proof of Delivery (TPD) is a commercial document generated by the contractor and/or the transporter of supplies and completed by the Government customer. The TPD process is used as a supplement to the customer receiving report and provides information necessary to show receipt of the supplies by the customer. The fully-completed TPD process demonstrates receipt and, coupled with acceptance, allows the Government to pay the contractor. It is not a substitute for any other requested receipt and acceptance documentation, such as DD 250, “Material Inspection and Receiving Report”, but is a supplement to such documentation.

(b) The Defense Logistics Agency (DLA) may accept supplies based on satisfactory TPD.

(c) The Contracting Officer may authorize the use of the TPD process when, based on historical receipt and payment metrics, Finance and Procurement Customer Liaisons (FCLs) recommend and the Contracting Officer determines the application of the TPD process necessary to ensure timely payment under the particular circumstances of a procurement. The recommendations made by the FCLs will be given on an individual basis based on analysis of the historical contract data, invoicing history, and customer receipting history. All of the following conditions must be present for using the TPD process:

(1) It is a Business Systems Modernization (BSM)/Enterprise Business System (EBS) procurement.

(2) Contract/order is awarded on a fixed price basis.

(3) Contract/order is customer direct.

(4) Fast pay is not authorized.

(5) Procurement is not origin acceptance.

(6) Procurement does not require overseas shipments or shipments to consolidation and containerization points.

(7) A joint finance team and acquisition team decide when implementing the TPD process is necessary to ensure prompt payment processing.

(d) Suppliers with existing contracts must agree to use the clause by the execution of a bilateral contract modification. If a vendor has an existing contract that has been modified to include the TPD process, that vendor's follow-on contract will normally include the TPD process.

(e) When authorized in accordance with paragraph (b) of this section, the Contracting Officer will include the clause at § 5432.2 in the contract, order, solicitation, request for quotation (RFQ), or purchase order.

§ 5432.2

Transporter proof of delivery.

As prescribed in paragraph (d) of this section, insert the following clause:

TRANSPORTER PROOF OF DELIVERY (AUG 2006)

(a) As used in this clause, Transporter Proof of Delivery (TPD) are commercial documents generated by the contractor and/or the contractor's transporter of supplies, and completed by the Government customer in order to document delivery of supplies under this contract/order. The TPD must contain all information necessary to demonstrate customer receipt of specified supplies under a specific contract or order, including a customer signature demonstrating receipt of supplies. This documentation, when completed and submitted as prescribed herein, satisfies the receipt report requirement and, coupled with acceptance, allows the Government to issue payment if other applicable payment conditions are satisfied.

(b) Submitted TPD. (1) The submitted TPD must include all of the following information:

(i) Contract number/order number.

(ii) Unit price.

(iii) Extended price.

(iv) Detailed description of supplies.

(v) Delivery date.

(vi) Recipient organization's name and address.

(vii) Location of delivery.

(viii) Receiving individual's printed name.

(ix) Receiving individual's signature.

(2) A combination of contractor and transporter documents may be needed to provide all of the required information. Examples are contractor packing lists and UPS or FEDEX delivery tracking reports. If a combination of documents is used, they must include cross-reference information, such as shipment number, that demonstrates that both sets of documents refer to the same supplies.

(c) Use of the transporter proof of delivery. (1) Payment. When this clause is used, the Government may use the TPD receipt as a basis for accepting the supplies, thereby enabling payment based on the contract/order, contractor's invoice, contractor-submitted TPD, and Government acceptance.

(2) TPD Process. (i) The Contractor shall self-register at the Wide Area Workflow (WAWF) Web site: https://wawf.eb.mil. (See https://wawf.eb.mil for WAWF registration and http://www.wawftraining.com for detailed training instructions. Additional WAWF support can be accessed by calling DISA WESTHEM Customer Support at [phone]. For more information on WAWF please go to the DLA WAWF Site: http://www.dla.mil/​j-3/​wawf.).

(ii) The Contractor shall enter the Receiving Report (RR) data. Contractors shall ensure the “pack later” box under the Pack Tab is checked prior to the submission of the RR.

(iii) The Contractor's transporter presents TPD documents to the customer for receipt signature or the transporter otherwise secures a customer signature demonstrating receipt, such as through an electronic signature recording device.

(iv) The Contractor obtains the TPD from the transporter, either in hardcopy provided by the transporter or through other means, such as a printout from the transporter's Internet tracking site.

(v) When the Contractor receives the TPD documents from the transporter, he or she will return to WAWF using “view documents,'' enter the appropriate contract data, and recall the RR.

(vi) On the first page provided, the Contractor will uncheck the “pack later'' box.

(vii) The Contractor shall then go to the last entry and click on “attachment.'' This will allow the Contractor to attach the TPD documents. When the TPD document is attached, the Contractor shall return to the Header Tab and submit the TPD document(s).

(viii) WAWF will notify the BSM FCL via email that a WAWF RR document is ready for review.

(ix) The information provided in the chart below is provided to assist the Contractor in the creation of the RR in WAWF:

WAWF fields	Data to enter
WAWF Document Type	Invoice and Receiving Report (COMBO).
Inspection/Destination Points	Other/Other.
Issue By Department of Defense Activity Address Code (DODAAC)	DODAAC of activity that issued the contract.
Admin DODAAC	DODAAC of activity that administers the contract.
Inspect By DODAAC (if applicable)	N/A—leave blank.
Ship To Code	DODAAC of the Ship To activity.
Acceptor at Other DODAAC	Refer to Issue By DODAAC:
	If Issue By is SPM1, use SP1001.
	If Issue By is SPM4, use SP4001.
	If Issue By is SPM5, use SP5001.
	If Issue By is SPM7, use SP7001.
PAY DODAAC	DODAAC of the activity that pays the contract.
Attachment	Attach customer delivery documentation.1 (Attachments created in any Microsoft Office Product or in PDF format are acceptable.)
1 Contractors are required to attach TPD complying with subparagraphs (a) and (b) of this clause to their WAWF document. To add attachments, enter contract information and then click on ‘Create Document.’ Then click on the ‘Misc Info’ tab. Attachment specific buttons will appear on the right side of the page. Select document to attach and click ‘Open.’ Then click ‘Continue.’ Your attachment will appear in the dropdown box. Click on the ‘Header’ tab to return to your original document and click ‘Submit.’

(d) Responsibility for supplies. (1) Title to the supplies passes to the Government after delivery to the point of first receipt by the Government and subsequent acceptance.

(2) Notwithstanding any other provision of the contract, order, or blanket purchase agreement, the Contractor shall:

(i) Assume all responsibility and risk of loss for supplies not received at destination, damaged in transit, or not conforming to purchase requirements; and

(ii) Replace, repair, or correct those supplies promptly at the Contractor's expense, if instructed to do so by the Contracting Officer within 180 days from the date title to the supplies vests in the Government.

End of Clause

Dated: May 7, 2008.

Patricia L. Toppings,

OSD Federal Register Liaison Officer. Department of Defense.