80 FR 30648 - Transporter Proof of Delivery

DEPARTMENT OF DEFENSE
Office of the Secretary

Federal Register Volume 80, Issue 103 (May 29, 2015)

This rule establishes a clause allowing the Government to require that contractors provide Transporter Proof of Delivery (TPD) when requested. As used in this rule, TPD means a commercial document that is generated by the contractor or the contractor's transporter of supplies and is signed by the Government customer in order to document delivery of supplies under a contract or order.

[Federal Register Volume 80, Number 103 (Friday, May 29, 2015)]
[Proposed Rules]
[Pages 30648-30650]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-13002]



[[Page 30648]]

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DEPARTMENT OF DEFENSE

Office of the Secretary

48 CFR Part 5432

[DOD-2008-DARS-0006]
RIN 0790-AI05


Transporter Proof of Delivery

AGENCY: Department of Defense.

ACTION: Proposed rule.

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SUMMARY: This rule establishes a clause allowing the Government to 
require that contractors provide Transporter Proof of Delivery (TPD) 
when requested. As used in this rule, TPD means a commercial document 
that is generated by the contractor or the contractor's transporter of 
supplies and is signed by the Government customer in order to document 
delivery of supplies under a contract or order.

DATES: Consideration will be given to all comments received on or 
before July 28, 2015.

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: Department of Defense, Office of the Deputy Chief 
Management Officer, Directorate of Oversight and Compliance, Regulatory 
and Audit Matters Office, 9010 Defense Pentagon, Washington, DC 20301-
9010.
    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: Christine Bond Jawish, (703) 767-8451.

SUPPLEMENTARY INFORMATION:

Executive Summary

I. Purpose of This Regulatory Action

    Not all Defense Logistics Agency (DLA) customers provide 
acknowledgement of receipt, which can lead to payment problems and 
negatively impact auditability. The TPD clause provides a mechanism for 
procuring proof of delivery from affected contractors, if the receiving 
activity has not acknowledged receipt of material. TPD documentation 
will be used as evidential matter in support of the receipt and 
acceptance functions, which will facilitate the payment process and 
support timely payment, thus decreasing Prompt Payment Act interest 
charges against the Government. It is estimated that on an annual 
basis, DLA pays approximately $800,000 in interest due to late payment.
    The legal authority for the regulatory action is 41 U.S.C. 1303, 
the general authority for Federal Acquisition Regulations system rule 
making.

II. Summary of the Major Provisions of This Regulatory Action

    This regulatory action provides for issuance of a TPD clause that 
requires contractors to submit TPD information when requested. The 
clause will be applicable to solicitations and awards for acquisitions 
for supplies issued by DLA Aviation, DLA Land and Maritime, and DLA 
Troop Support when contract deliveries will be made directly to DLA 
customers, with the following exceptions: Acquisitions requiring DCMA 
Inspection and Acceptance, shipments for overseas destinations or to 
containerization consolidation points, and acquisitions conducted under 
the Subsistence Total Order and Receipt Electronic System (STORES), 
Defense Medical Logistics Standard Support (DMLSS), Industrial Prime 
Vendor (IPV), or Integrated Logistics Partner (ILP) programs.
    TPD will normally be requested from a contractor only when it is 
known or appears likely, based on current or past experience, that a 
customer receiving supplies under the applicable contract or order will 
not provide material receipt acknowledgment (MRA) in a timely manner so 
as to support payment in accordance with Prompt Payment Act 
requirements.
    The clause states that when the Government requests TPD, the 
request and response will be made using electronic mail and requires 
the contractor to submit the requested TPD documentation in a 
prescribed digital format. It is anticipated that contractors will 
either have or will easily be able to collect the TPD documentation in 
the normal course of business.

III. Cost and Benefits of This Regulatory Action

    It is anticipated that costs related to use of the clause will not 
be significant. The information to be submitted under the clause is 
expected to be required only on an exception basis, is expected to be 
readily available to the contractors subject to the clause, and will 
normally be provided using electronic means (digital attachments to 
electronic mail).
    Use of the clause will facilitate the contract payment process in 
instances where the normal system for receipt and acceptance is not 
functioning in a timely manner. It is anticipated that facilitation of 
the contract payment process will result in a decrease in Prompt 
Payment Act interest accrual and resulting payments to contractors by 
the Defense Logistics Agency.

Regulatory Analysis

Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and Regulatory Review''

    It has been determined that 48 CFR part 5432 is a significant 
regulatory action and has been reviewed by OMB.

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.

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

    Section 5432.2 of this proposed rule contains information 
collection requirements. DoD has submitted the following proposal to 
OMB under the provisions of the Paperwork Reduction Act (44 U.S.C. 
Chapter 35). Comments are invited on: (a) Whether the proposed 
collection of information is necessary for the proper performance of 
the functions of DoD, including whether the information will have 
practical utility; (b) the accuracy of the estimate of the burden of 
the proposed information collection; (c) ways to enhance the quality, 
utility, and clarity of the information to be collected; and (d) ways 
to minimize the burden of the information collection on respondents, 
including the use of automated

[[Page 30649]]

collection techniques or other forms of information technology.
    Title: Transporter Proof of Delivery.
    Type of Request: Existing collection in use without an OMB Control 
Number.
    Number of Respondents: 158,307.
    Responses per Respondent: 1.
    Annual Responses: 158,307.
    Average Burden per Response: 10 minutes.
    Annual Burden Hours: 26,385 hours.
    Needs and Uses: Transporter Proof of Delivery documentation will be 
requested from a contractor when it is known or appears likely, based 
on current or past experience that a customer receiving supplies under 
the applicable contractor or order will not provide material receipt 
acknowledgment in a timely manner so as to support payment in 
accordance with Prompt Payment requirements.
    Affected Public: Businesses or other for-profits.
    Frequency: Annually.
    Respondent's Obligation: Voluntary.
    OMB Desk Officer: Jasmeet Seehra.
    Written comments and recommendations on the proposed information 
collection should be sent to Ms. Jasmeet Seehra at the Office of 
Management and Budget, DoD Desk Officer, Room 10102, New Executive 
Office Building, Washington, DC 20503, with a copy to the Defense 
Logistics Agency, ATTN: J71, Suite 3122, 8725 John Kingman Road, Fort 
Belvoir, VA 22060. Comments can be received from 30 to 60 days after 
the date of this notice, but comments to OMB will be most useful if 
received by OMB within 30 days after the date of this notice.
    You may also submit comments, identified by docket number and 
title, by the following method:
    * Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the instructions for submitting comments.
    Instructions: All submissions received must include the agency 
name, docket number and title 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.
    To request more information on this proposed information collection 
or to obtain a copy of the proposal and associated collection 
instruments, please write to the Defense Logistics Agency, ATTN: J71, 
Suite 3122, 8725 John Kingman Road, Fort Belvoir, VA 22060. POC is 
Christine Bond Jawish, 703-767-8451.

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

Sec.
5432.1 Payment documentation process.
5432.2 Transporter proof of delivery.

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


Sec.  5432.1  Payment documentation process.

    (a) General. (1) Transporter proof of delivery (TPD). (i) TPD is a 
commercial document generated by the contractor or the transporter of 
supplies and signed by the Government customer at time of delivery. 
TPD, in combination with adequate contractor documentation cross-
referencing the TPD to the specific supplies provided, demonstrates 
customer receipt. This documentation allows the Government to initiate 
the acceptance and payment process.
    (ii) TPD is not a substitute for any other receipt and acceptance 
documentation, such as the material receipt acknowledgement (MRA) or 
the Wide Area Workflow receiving report (RR) required from the DoD 
customer, but is a supplement to such documentation, and may be used to 
document receipt and as the basis for Government acceptance to pay the 
contractor's invoice in the absence of an MRA or RR. The exceptions to 
the requirement for contractors to submit payment requests and 
receiving reports in electronic form are listed at DFARS 232.7002, to 
include cases in which DoD is unable to receive payment requests or 
provide acceptance in electronic form.
    (2) [Reserved].
    (b) Content of invoices. (1) TPD. (i) DLA may accept supplies based 
on submission by the contractor of satisfactory documentation to 
demonstrate customer receipt of supplies (correct items(s) and correct 
quantities) under a specific contract or order in accordance with 
paragraph (a)(1) of this section.
    (ii) If the customer has submitted a supply discrepancy report 
(SDR) or MRA discrepancy indicator, payment shall not be made until the 
discrepancy is resolved. If payment is made before the purchasing 
organization receives the SDR or MRA discrepancy indicator, the 
Government may pursue appropriate remedies, including those provided by 
Sec.  5432.2.
    (2) Reserved.
    (c) Authorization to pay. (1) TPD. (i) Application. Contracting 
officers at DLA Aviation, DLA Land and Maritime, and DLA Troop Support 
shall insert the clause at Sec.  5432.2, TPD, in solicitations and 
awards for supplies when contract deliveries will be made directly to 
DLA customers. The following exceptions apply:
    (A) DCMA Inspection and Acceptance
    (B) Shipments to overseas destinations or to containerization 
consolidation points; and
    (C) Acquisitions conducted under the Subsistence Total Order and 
Receipt Electronic System (STORES), Defense Medical Logistics Standard 
Support (DMLSS), Industrial Prime Vendor (IPV), or Integrated Logistics 
Partner (ILP) programs.
    (ii) Transporter proof of delivery procedural guidance: TPD will 
normally be requested from a contractor only when it is known or 
appears likely, based on current or past experience, that a customer 
receiving supplies under the applicable contract or order will not 
provide material receipt acknowledgement (MRA) in a timely manner so as 
to support payment in accordance with Prompt Payment requirements. The 
customer is still required to submit the MRA, and supply chains shall 
continue to ensure that follow up action is taken by appropriate 
personnel to obtain the MRA from the customer when it is not provided.
    (2) Reserved.


Sec.  5432.2  Transporter proof of delivery.

    Insert the Transporter Proof of Delivery clause in this section, 
when applicable in accordance with Sec.  5432.1(a)(1)(i) and when 
either the clause at 48 CFR 52.232-25, Prompt Payment, or the clause at 
48 CFR 52.212-4, Contract Terms and Conditions--Commercial Items, is 
used.


(Beginning of Clause)

TRANSPORTER PROOF OF DELIVERY (TPD) (DATE)

    (a) Definition. As used in this clause, transporter proof of 
delivery (TPD) means a commercial document that is generated by the 
Contractor or the Contractor's transporter of supplies and that is 
signed by the Government

[[Page 30650]]

customer in order to document delivery of supplies under this contract/
order. Examples of TPD are United Parcel Service (UPS) or Federal 
Express (FEDEX) delivery tracking reports. TPD documentation must 
include a Government customer signature and, if practicable, clearly 
state the name of the Government customer who signed.
    (b) When this clause is included in the contract or order, the 
Government may use TPD, in combination with adequate Contractor 
documentation cross-referencing the TPD to the specific supplies 
provided, as a basis for accepting the supplies. TPD with adequate 
supporting documentation satisfies the receipt report requirement and 
in non-fast payment contracts and orders allows the Government to 
initiate the payment process, if all other applicable payment 
conditions are satisfied.
    (c) To facilitate the payment process, the Government may initiate 
a request for the Contractor to provide TPD. The Contractor shall 
provide TPD upon request by the Government. The Contractor shall 
provide TPD within 10 calendar days following request. The request and 
response will be made using electronic mail. The Contractor shall 
immediately notify the Government if TPD is not available. The TPD 
documentation shall be a clear, readable, and accurate copy of the 
original and be provided in standard Portable Document File (PDF) or 
Joint Photographic Experts Group (JPEG) digital format, and must 
include the following:
    (1) Government customer signature and, if practicable, clearly 
state the name of the Government customer who signed;
    (2) Contract number and, if applicable, order number;
    (3) Contract line item number(s) (CLIN(s));
    (4) Quantity of items;
    (5) National stock number (NSN);
    (6) Delivery date;
    (7) Recipient organization's name and address; and
    (8) Location where the carrier made delivery (activity name, 
building number, city, state).
    (d) In addition to the above information which is required, the TPD 
should contain as much of the following information as possible:
    (1) Unit price;
    (2) Extended Price;
    (3) Receiving activity Department of Defense activity address code 
(DoDAAC)
    (4) Requisition document number (and suffix, when applicable);
    (5) Shipment number; and,
    (6) Invoice number.
    (e) Responsibility for supplies for which TPD is requested.
    (1) Title to the supplies passes to the Government when the 
Government accepts the supplies.
    (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 26, 2015.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2015-13002 Filed 5-28-15; 8:45 am]
 BILLING CODE 5001-06-P