General Services Administration Acquisition Regulation; Remove OGC Review for Final Payments
| Published date | 02 November 2021 |
| Record Number | 2021-23669 |
| Section | Rules and Regulations |
| Court | General Services Administration |
Federal Register, Volume 86 Issue 209 (Tuesday, November 2, 2021)
[Federal Register Volume 86, Number 209 (Tuesday, November 2, 2021)]
[Rules and Regulations]
[Pages 60372-60373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23669]
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GENERAL SERVICES ADMINISTRATION
48 CFR Part 532
[GSAR Case 2020-G521; Docket No. GSA-GSAR-2021-0023; Sequence No. 1]
RIN 3090-AK35
General Services Administration Acquisition Regulation; Remove
OGC Review for Final Payments
AGENCY: Office of Acquisition Policy, General Services Administration
(GSA).
ACTION: Final rule.
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SUMMARY: The General Services Administration (GSA) is issuing a final
rule amending 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: Effective: December 2, 2021.
FOR FURTHER INFORMATION CONTACT: Mr. Tyler Piper or Mr. Stephen
Carroll, GSA Acquisition Policy Division, at [email protected] or 817-
253-7858, for clarification of content. For information pertaining to
status or publication schedules, contact the Regulatory Secretariat at
202-501-4755. Please cite GSAR Case 2020-G521.
SUPPLEMENTARY INFORMATION:
I. Background
GSA published a proposed rule in the Federal Register at 86 FR
20359 on April 19th, 2021, 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
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
The proposed rule received one comment. The General Services
Administration has reviewed the comment in the development of the final
rule. A discussion of the comment and the changes made to the rule as a
result of the comment is provided as follows:
A. Summary of Significant Changes
No changes were made between the proposed rule and this final rule.
B. Comments
1. Changes to Oversight
Comment: The respondent expressed concern that removing the Office
of General Council (OGC's) oversight over contract closing could
potentially invite fraud.
Response: The purpose of OGC review is to provide legal advice and
guidance to agency personnel, based on applicable laws, regulations,
and policies, consistent with the best interests of the United States.
It is not designed as a specific safeguard from fraud. GSA has
determined that removal of this particular OGC review will streamline
operations without opening a new area of risk of non-compliance with
laws, regulations, or policies.
From a fraud mitigation standpoint, the need for separate approval
still exists, but it is more appropriately nested within the business
operations, not legal counsel.
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
The General Services Administration certifies that this final rule
will not 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.
VIII. Paperwork Reduction Act
The final 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. chapter 35).
List of Subjects in 48 CFR Part(s) 532
Government procurement.
Jeffrey A. Koses,
Senior Procurement Executive, Office of Acquisition Policy, Office of
Governmentwide Policy, General Services Administration.
Therefore, GSA amends 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).
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2. Amend section 532.905-70 by--
0
a. Removing from paragraph (a) the phrase ``amount due the Contractor''
and adding the phrase ``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:
[[Page 60373]]
(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. 2021-23669 Filed 11-1-21; 8:45 am]
BILLING CODE 6820-61-P
