General Services Administration Acquisition Regulation; Remove Office of General Counsel Review for Final Payments

Published date19 April 2021
Citation86 FR 20359
Record Number2021-07817
SectionProposed rules
CourtGeneral Services Administration
Federal Register, Volume 86 Issue 73 (Monday, April 19, 2021)
[Federal Register Volume 86, Number 73 (Monday, April 19, 2021)]
                [Proposed Rules]
                [Pages 20359-20360]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2021-07817]
                =======================================================================
                -----------------------------------------------------------------------
                GENERAL SERVICES ADMINISTRATION
                48 CFR Part 532
                [GSAR Case 2020-G521; Docket No. 2021-0008; Sequence No. 1]
                RIN 3090-AK35
                General Services Administration Acquisition Regulation; Remove
                Office of General Counsel Review for Final Payments
                AGENCY: Office of Acquisition Policy, General Services Administration
                (GSA).
                ACTION: Proposed rule.
                -----------------------------------------------------------------------
                SUMMARY: GSA is proposing to amend the General Services Administration
                Acquisition Regulation (GSAR) to revise internal agency approval
                procedures for processing a final payment for construction and building
                service contracts where, after 60 days, a contracting officer is unable
                to obtain a release of claims from a contractor.
                DATES: Interested parties should submit written comments to the
                Regulatory Secretariat Division at the address shown below on or before
                June 18, 2021 to be considered in the formation of the final rule.
                ADDRESSES: Submit comments in response to GSAR Case 2020-G521 to:
                Regulations.gov: https://www.regulations.gov. Submit comments via the
                Federal eRulemaking portal by searching for ``GSAR Case 2020-G521''.
                Select the link ``Comment Now'' that corresponds with GSAR Case 2020-
                G521. Follow the instructions provided at the ``Comment Now'' screen.
                Please include your name, company name (if any), and ``GSAR Case 2020-
                G521'' on your attached document. If your comment cannot be submitted
                using https://www.regulations.gov, call or email the points of contact
                in the FOR FURTHER INFORMATION CONTACT section of this document for
                alternate instructions.
                 Instructions: Please submit comments only and cite GSAR Case 2020-
                G521 in all correspondence related to this case. Comments received
                generally will be posted without change to https://www.regulations.gov,
                including any personal and/or business confidential information
                provided. To confirm receipt of your comment(s), please check https://www.regulations.gov approximately two to three days after submission to
                verify posting.
                FOR FURTHER INFORMATION CONTACT: Mr. Logan Kemp, GSA Acquisition Policy
                Division, at 202-969-4066 or by email at [email protected], for
                clarification of content. For information pertaining to status or
                publication schedules, contact the Regulatory Secretariat Division at
                202-501-4755 or [email protected]. Please cite GSAR Case 2020-G521.
                SUPPLEMENTARY INFORMATION:
                I. Background
                 GSA is proposing to amend the General Services Administration
                Regulations (GSAR) to modify GSAR 532.905-70 so it no longer requires
                contracting officers to obtain approval of legal counsel before
                processing final payments for construction and building service
                contracts where, after 60 days, the contracting officer is unable to
                [[Page 20360]]
                obtain a release of claims from the contractors. Legal review is not a
                statutory requirement, and the decision to process final payments in
                such cases is a business decision, rather than a legal one.
                II. Authority for This Rulemaking
                 Title 40 of the United States Code (U.S.C.) Section 121 authorizes
                GSA to issue regulations, including the GSAR, to control the
                relationship between GSA and contractors.
                III. Discussion and Analysis
                 Prior to this rule, GSA guidance on final payments for construction
                and building service contracts provided that, ``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.'' GSA is
                proposing to amend GSAR 532.905-70(c) by removing the legal approval
                requirement because this is a business decision to be made by the
                contracting officer, not a legal decision. Therefore, if there is
                implementation of this proposed rule, a contracting officer may instead
                process a final payment in such a situation after documenting in the
                contract file: (i) That the contracting officer requested a release of
                claims from the contractor and did not receive a response within 60
                calendar days; and (ii) approval to process the final payment from one
                level above the contracting officer.
                IV. Executive Orders 12866 and 13563
                 Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
                all costs and benefits of available regulatory alternatives and, if
                regulation is necessary, to select regulatory approaches that maximize
                net benefits (including potential economic, environmental, public
                health and safety effects, distributive impacts, and equity). E.O.
                13563 emphasizes the importance of quantifying both costs and benefits,
                of reducing costs, of harmonizing rules, and of promoting flexibility.
                This rule has been reviewed and determined by Office of Management and
                Budget (OMB) not to be a significant regulatory action and, therefore,
                was not subject to review under section 6(b) of E.O. 12866, Regulatory
                Planning and Review, dated September 30, 1993.
                V. Congressional Review Act
                 The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by
                the Small Business Regulatory Enforcement Fairness Act of 1996,
                generally provides that before a ``major rule'' may take effect, the
                agency promulgating the rule must submit a rule report, which includes
                a copy of the rule, to each House of the Congress and to the
                Comptroller General of the United States. A major rule cannot take
                effect until 60 days after it is published in the Federal Register.
                This rule has been reviewed and determined by OMB not to be a ``major
                rule'' under 5 U.S.C. 804(2).
                VI. Regulatory Flexibility Act
                 GSA 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.
                 Therefore, an Initial Regulatory Flexibility Analysis has not been
                performed. GSA invites comments from small business concerns and other
                interested parties on the expected impact of this rule on small
                entities.
                 GSA will also consider comments from small entities concerning the
                existing regulations in subparts affected by the rule in accordance
                with 5 U.S.C. 610. Interested parties must submit such comments
                separately and should cite 5 U.S.C. 610 (GSAR Case 2020-G521), in
                correspondence.
                VII. Paperwork Reduction Act
                 This rule does not contain any information collection requirements
                that require the approval of the Office of Management and Budget under
                the Paperwork Reduction Act (44 U.S.C. 35, et seq.).
                List of Subjects in 48 CFR Part 532
                 Government procurement.
                Jeffrey A. Koses,
                Senior Procurement Executive, Office of Acquisition Policy, Office of
                Government-wide Policy, General Services Administration.
                 Therefore, GSA proposes to amend 48 CFR part 532 as set forth
                below:
                PART 532--CONTRACT FINANCING
                0
                1. The authority citation for 48 CFR part 532 continues to read as
                follows:
                 Authority: 40 U.S.C. 121(c).
                0
                2. Amend section 532.905-70 by--
                0
                a. Removing from paragraph (a) ``amount due the Contractor'' and adding
                ``amount due to the contractor'' in its place;
                0
                b. Revising paragraph (b); and
                0
                c. Removing paragraphs (c) and (d).
                 The revision reads as follows:
                532.905-70 Final payment--construction and building service
                contracts.
                * * * * *
                 (b) A contracting officer may only process the final payment for a
                construction or building service contract once:
                 (1) The contractor submits a properly executed GSA Form 1142,
                Release of Claims; or
                 (2) The contracting officer documents in the contract file:
                 (i) That the contracting officer requested a release of claims from
                the contractor and did not receive a response within 60 calendar days;
                and
                 (ii) Approval to process the final payment from one level above the
                contracting officer.
                [FR Doc. 2021-07817 Filed 4-16-21; 8:45 am]
                BILLING CODE 6820-61-P
                

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT