81 FR 80608 - Department of the Treasury Acquisition Regulations; Incremental Funding of Fixed-Price, Time-and-Material or Labor-Hour Contracts During a Continuing Resolution
DEPARTMENT OF THE TREASURY Federal Register Volume 81, Issue 221 (November 16, 2016)
Federal Register Volume 81, Issue 221 (November 16, 2016)
| Page Range | 80608-80610 | |
| FR Document | 2016-27548 |
[Federal Register Volume 81, Number 221 (Wednesday, November 16, 2016)] [Rules and Regulations] [Pages 80608-80610] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-27548] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF THE TREASURY 48 CFR Parts 1032 and 1052 Department of the Treasury Acquisition Regulations; Incremental Funding of Fixed-Price, Time-and-Material or Labor-Hour Contracts During a Continuing Resolution AGENCY: Department of the Treasury. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This final rule amends the Department of Treasury Acquisition Regulation (DTAR) for the purposes of providing acquisition policy for incremental funding of Fixed-Price, Time-and-Material or Labor-Hour contracts during a continuing resolution. DATES: Effective date: December 16, 2016. FOR FURTHER INFORMATION CONTACT: Thomas O'Linn, Procurement Analyst, Office of the Procurement Executive, at (202) 622-2092. SUPPLEMENTARY INFORMATION: Background The DTAR, which supplements the Federal Acquisition Regulation (FAR), is codified at 48 CFR Chapter 10. The Anti-Deficiency Act, 31 U.S.C. 1341 and the FAR section 32.702, state that no officer or employee of the government may create or authorize an obligation in excess of the funds available, or in advance of appropriations unless otherwise authorized by law. A continuing resolution (CR) provides funding for continuing projects or activities that were conducted in the prior fiscal year for which appropriations, funds, or other authority was previously made available. Each CR is governed by its specific terms. However, amounts available under a CR are frequently insufficient to fully fund contract actions that may be required during its term. No existing contract clause permits partial funding of a contract action awarded during a CR. While other strategies are available to address the need to take contract actions during a CR, these strategies--for example short-term awards--are inefficient and may have other disadvantages. On July 12, 2016, the Department issued a proposed rule (81 FR 45118) that would establish policies and procedures in order to facilitate successful, timely, and economical execution of Treasury contractual actions during a CR. Specifically, the proposed rule would set forth procedures for using incremental funding for fixed-price, time-and-material and labor-hour contracts during a period in which funds are provided to Treasury Departmental Offices or Bureaus under a CR. Heads of contracting activities may develop necessary supplemental internal procedures as well as guidance to advise potential offerors, offerors and contractors of these policies and procedures. The comment period for the proposed rule closed on September 12, 2016. No public comments were received. Accordingly, the Department is adopting the proposed rule without substantive change. Regulatory Planning and Review This rule is not a significant regulatory action as defined in section 3(f) of Executive Order 12866. Therefore a regulatory assessment is not required. Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. chapter 6) generally requires agencies to conduct an initial regulatory flexibility analysis and a final regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. It is hereby certified that this rule will not have a significant economic impact on a substantial number of small entities. The rule is intended to make changes to the DTAR that would allow for improvements in continuity when Treasury funding is operating under a CR and should not have significant economic impacts on small entities. List of Subjects in 48 CFR Parts 1032 and 1052 Government procurement. Accordingly, the Department of the Treasury amends 48 CFR Chapter 10 as follows: PART 1032--CONTRACT FINANCING 0 1. The authority citation for part 1032 continues to read as follows: Authority: 41 U.S.C. 1707. [[Page 80609]] 0 2. Add subpart 1032.7 to read as follows: Subpart 1032.7--Contract Funding Sec. 1032.770 Incremental funding during a Continuing Resolution. 1032.770-1 Scope of section. 1032.770-2 Definition. 1032.770-3 General. 1032.770-4 Policy. 1032.770-5 Limitations. 1032.770-6 Procedures. 1032.770-7 Clause. Subpart 1032.7--Contract Funding 1032.770 Incremental funding during a Continuing Resolution. 1032.770-1 Scope of section. This section provides policy and procedure for using incremental funding for fixed-price, time-and-material and labor-hour contracts during a period in which funds are provided to Treasury Departmental Offices or Bureaus, under a continuing resolution (CR). HCAs may develop necessary supplemental internal procedures as well as guidance to advise potential offerors, offerors and contractors of these policies and procedures. Additionally, Bureaus who receive non- appropriated funds may utilize and tailor these policies and procedures to fit their needs. 1032.770-2 Definition. ``Continuing Resolution'' means an appropriation, in the form of a joint resolution, that provides budget authority for federal agencies, specific activities, or both to continue operation until the regular appropriations are enacted. Typically, a continuing resolution is used when legislative action on appropriations is not completed by the beginning of a fiscal year. 1032.770-3 General. The Anti-Deficiency Act, 31 U.S.C. 1341 and FAR 32.702, states that no officer or employee of the Government may create or authorize an obligation in excess of the funds available, or in advance of appropriations unless otherwise authorized by law. A CR provides funding for continuing projects or activities that were conducted in the prior fiscal year for which appropriations, funds, or other authority was previously made available. Each CR is governed by the specific terms in that specific CR (e.g. duration of the CR) and under certain CRs, the funding amounts available for award of contract actions are inadequate to fund the entire amounts needed for some contract actions. 1032.770-4 Policy. (a) A fixed-price, time-and-materials or labor-hour contract or order for commercial or non-commercial supplies or severable or non- severable services may be incrementally funded when-- (1) Funds are provided to a Treasury Departmental Office or Bureau under a CR. This includes funds appropriated to a bureau, funds appropriated to another entity that will be directly obligated on a Treasury contract, and funds in a revolving fund or similar account that will be reimbursed by a customer agency funded by a CR; (2) Sufficient funds are not being allocated from the responsible fiscal authority to fully fund the contract action that is otherwise authorized to be issued; (3) There is no statutory restriction that would preclude the proposed use of funds; (4) Funds are available and unexpired, as of the date the funds are obligated; (5) Assurance is provided by the responsible financial authority that full funding is anticipated once an Appropriation Act is enacted; and (6) The clause prescribed by 1032.770-7 is incorporated into the contract or order. (b) Incremental funding may be limited to individual line item(s) or a particular order(s). 1032.770-5 Limitations. (a) This policy does not apply to contract actions that are not covered by the CR. (b) If this policy is applied to non-severable services or to supplies, the contracting officer shall take into consideration the business risk to the Government if funding does not become available to fully fund the contract. If the contracting officer determines the use of incremental funding for non-severable services or supplies is in the best interest of the Government the contracting officer shall ensure the contractor fully understands how the limitations of the Government's liabilities under the contract might impact its ability to perform within the prescribed contract schedule. 1032.770-6 Procedures. (a) An incrementally funded fixed-price, time-and-materials or labor-hour contract shall be fully funded once funds are available. (b) The contracting officer shall ensure that sufficient funds are allotted to the contract to cover the total amount payable to the contractor in the event of termination of convenience by the Government. (c) Upon receipt of the contractor's notice under paragraph (c) of the clause at 1052.232-90, Limitation of Government's Obligation, the contracting officer shall promptly provide written notice to the contractor that the Government is-- (i) Obligating additional funds for continued performance and increasing the Government's limitation of obligation in a specified amount; (ii) Obligating the full amount of funds needed; (iii) Terminating for convenience, as applicable, the affected line items or contract; or (iv) Considering whether to allot additional funds; and (A) The contractor is entitled by the contract terms to stop work when the Government's limitation of obligation is reached; and (B) Any costs expended beyond the Government's limitation of obligation are at the contractor's risk. (d) Upon learning that the contract will receive no further funds by the date provided in the notice under paragraph (c) of the clause at 1052.232-70, Limitation of Government's Obligation, the contracting officer shall promptly give the contractor written notice of the Government's decision and terminate the affected line items or contract, as applicable, for the convenience of the Government. 1032.770-7 Clause. The contracting officer shall insert the clause at 1052.232-70, Limitation of Government's Obligation, in (a) Solicitations and resultant contracts when incremental funding of fixed-price, time-and-material or labor-hour contract via a CR is anticipated; or (b) Contracts or orders when incremental funding of a fixed-price, time-and-material or labor-hour contract is authorized and the Treasury Departmental Office or Bureau is operating under a CR (see 1032.770-4); and (c) The CO shall insert the information required in paragraphs (a) and (c) of the clause. PART 1052--SOLICITATION PROVISIONS AND CONTRACT CLAUSES 0 3. The authority citation for part 1052 continues to read as follows: Authority: 41 U.S.C. 1707. 0 4. Add 1052.232-70 to subpart 1052.2 to read as follows: 1052.232-70 Limitation of Government's obligation. As prescribed in 1032.770-7, insert the following clause. Contracting [[Page 80610]] officers are authorized, in appropriate cases, to revise paragraph (a) of this clause to specify the work required under the contract, in lieu of using contract line item numbers as well as revise paragraph (c) of this clause to specify a different notification period and percentage. The 30-day period may be varied from 45, 60 to 90 days, and the 75 percent from 75 to 85 percent: Limitation of Government's Obligation (Nov 2016) (a) Funding is not currently available to fully fund this contract due to the Government operating under a continuing resolution (CR). The item(s) listed in the table below are being incrementally funded as described below. The funding allotted to these item(s) is presently available for payment and allotted to this contract. This table will be updated by a modification to the contract when additional funds are made available, if any, to this contract. ---------------------------------------------------------------------------------------------------------------- Funds required for Contract line item number (CLIN) CLIN total price Funds allotted to the complete funding of CLIN the CLIN ---------------------------------------------------------------------------------------------------------------- $ $ $ $ $ $ $ $ $ $ $ $ Totals.......................... $ $ $ ---------------------------------------------------------------------------------------------------------------- (b) For the incrementally funded item(s) identified in paragraph (a) of this clause, the Contractor agrees to perform up to the point at which the total amount payable by the Government, including any invoice payments to which the Contractor is entitled and reimbursement of authorized termination costs in the event of termination of those item(s) for the Government's convenience, does not exceed the total amount currently obligated to those item(s). The Contractor is not authorized to continue work on these item(s) beyond that point. The Government will not be obligated in any event to reimburse the Contractor in excess of the amount allotted to the line items of the contract regardless of anything to the contrary in any other clause, including but not limited to the clause entitled ``Termination for Convenience of the Government'' or paragraph (1) entitled ``Termination for the Government's Convenience'' of the clause at FAR 52.212-4, ``Commercial Terms and Conditions Commercial Items.'' (c) Notwithstanding paragraph (h) of this clause, the Contractor shall notify the Contracting Officer in writing at least thirty days prior to the date when, in the Contractor's best judgment, the work will reach the point at which the total amount payable by the Government, including any cost for termination for convenience, will approximate 85 percent of the total amount then allotted to the contract for performance of the item(s) identified in paragraph (a) of this clause. The notification shall state the estimated date when that point will be reached and an estimate of additional funding, if any, needed to continue performance. The notification shall also advise the Contracting Officer of the estimated amount of additional funds required for the timely performance of the item(s) funded pursuant to this contract. If after such notification additional funds are not allotted by the date identified in the Contractor's notification, or by an agreed upon substitute date, the Contracting Officer will terminate any item(s) for which additional funds have not been allotted, pursuant to the terms of this contract authorizing termination for the convenience of the Government. Failure to make the notification required by this paragraph, whether for reasons within or beyond the Contractor's control, will not increase the maximum amount payable to the Contractor under paragraphs (a) and (b) of this clause. (d) The Government may at any time prior to termination allot additional funds for the performance of the item(s) identified in paragraph (a) of this clause. (e) The termination provisions of paragraphs (a) through (h) of this clause do not limit the rights of the Government under the clause entitled ``Default'' or ``Termination for Cause.'' The provisions of this clause are limited to the work and allotment of funds for the item(s) set forth in paragraph (a) of this clause. This clause no longer applies once the contract is fully funded. (f) Nothing in this clause affects the right of the Government to terminate this contract pursuant to the Government's termination for convenience terms set forth in this contract. (g) Nothing in this clause shall be construed as authorization of voluntary services whose acceptance is otherwise prohibited under 31 U.S.C. 1342. (h) The parties contemplate that the Government will allot funds to this contract from time to time as the need arises and as funds become available. There is no fixed schedule for providing additional funds. (End of clause) Dated: November 8, 2016. Iris B. Cooper, Senior Procurement Executive, Office of the Procurement Executive. [FR Doc. 2016-27548 Filed 11-15-16; 8:45 am] BILLING CODE 4810-25-P
![80608 Federal Register / Vol. 81, No. 221 / Wednesday, November 16, 2016 / Rules and Regulations
sensitive events such as a recertification recordkeeping requirements, inefficient and may have other
deadline or the end of a deferment Telecommunications, and Telephone. disadvantages.
period, and in the 30 days before such Federal Communications Commission. On July 12, 2016, the Department
an event, rather than limiting the Marlene H. Dortch, issued a proposed rule (81 FR 45118)
exception to calls made when the debt that would establish policies and
Secretary.
is delinquent or in default. Similarly, procedures in order to facilitate
[FR Doc. 2016–24745 Filed 11–15–16; 8:45 am]
the Commission expanded the reach of successful, timely, and economical
the exception by allowing covered calls BILLING CODE 6712–01–P
execution of Treasury contractual
to be made to a phone number actions during a CR. Specifically, the
subsequently provided by the debtor to proposed rule would set forth
the servicer or owner of the debt, or a DEPARTMENT OF THE TREASURY procedures for using incremental
number obtained from an independent funding for fixed-price, time-and-
source, rather than limiting calls to the 48 CFR Parts 1032 and 1052 material and labor-hour contracts during
number provided on the loan a period in which funds are provided to
application. These changes benefit Department of the Treasury Treasury Departmental Offices or
regulated entities of all sizes. Acquisition Regulations; Incremental Bureaus under a CR. Heads of
93. Timetables. The Commission does Funding of Fixed-Price, Time-and- contracting activities may develop
not see a need to establish a special Material or Labor-Hour Contracts necessary supplemental internal
timetable for small entities to reach During a Continuing Resolution procedures as well as guidance to advise
compliance with the modification to the AGENCY: Department of the Treasury. potential offerors, offerors and
rules. No small business has asked for contractors of these policies and
ACTION: Final rule.
a delay in implementing the rules. procedures.
94. Reporting requirements; SUMMARY: This final rule amends the The comment period for the proposed
performance standards. Since the rule Department of Treasury Acquisition rule closed on September 12, 2016. No
does not impose reporting requirements, Regulation (DTAR) for the purposes of public comments were received.
there is no need to establish less providing acquisition policy for Accordingly, the Department is
burdensome reporting requirements for incremental funding of Fixed-Price, adopting the proposed rule without
small businesses. Similarly, there are no Time-and-Material or Labor-Hour substantive change.
design standards or performance contracts during a continuing Regulatory Planning and Review
standards to consider in this resolution.
rulemaking. This rule is not a significant
DATES: Effective date: December 16, regulatory action as defined in section
95. Exemption. The Commission does 2016.
not see a need to consider an exemption 3(f) of Executive Order 12866. Therefore
for small businesses from the modified FOR FURTHER INFORMATION CONTACT: a regulatory assessment is not required.
rules. No small business has asked for Thomas O’Linn, Procurement Analyst,
Regulatory Flexibility Act
such an exemption. Office of the Procurement Executive, at
(202) 622–2092. The Regulatory Flexibility Act (5
Congressional Review Act U.S.C. chapter 6) generally requires
SUPPLEMENTARY INFORMATION:
The Commission will send a copy of agencies to conduct an initial regulatory
document FCC 16–99 to Congress and the Background flexibility analysis and a final regulatory
Government Accountability Office pursuant The DTAR, which supplements the flexibility analysis of any rule subject to
to the Congressional Review Act, see 5 U.S.C. notice and comment rulemaking
801(a)(1)(A).
Federal Acquisition Regulation (FAR), is
codified at 48 CFR Chapter 10. requirements, unless the agency certifies
Final Paperwork Reduction Act of 1995 The Anti-Deficiency Act, 31 U.S.C. that the rule will not have a significant
Analysis 1341 and the FAR section 32.702, state economic impact on a substantial
Document FCC 16–99 contains modified that no officer or employee of the number of small entities.
information collection requirements. The government may create or authorize an It is hereby certified that this rule will
Commission, as part of its continuing effort obligation in excess of the funds not have a significant economic impact
to reduce paperwork burdens, will invite the available, or in advance of on a substantial number of small
general public to comment on the
appropriations unless otherwise entities. The rule is intended to make
information collection requirements
contained in document FCC 16–99 as authorized by law. A continuing changes to the DTAR that would allow
required by the Paperwork Reduction Act resolution (CR) provides funding for for improvements in continuity when
(PRA) of 1995, Public Law 104–13. In continuing projects or activities that Treasury funding is operating under a
addition, the Commission notes that, were conducted in the prior fiscal year CR and should not have significant
pursuant to the Small Business Paperwork for which appropriations, funds, or economic impacts on small entities.
Relief Act of 2002, Public Law 107–198, 44 other authority was previously made
U.S.C. 3506(c)(4), the Commission previously List of Subjects in 48 CFR Parts 1032
available.
sought comment on how the Commission and 1052
Each CR is governed by its specific
might ‘‘further reduce the information
terms. However, amounts available Government procurement.
burden for small business concerns with
fewer than 25 employees.’’ See Rules and under a CR are frequently insufficient to Accordingly, the Department of the
Regulations Implementing the Telephone fully fund contract actions that may be Treasury amends 48 CFR Chapter 10 as
mstockstill on DSK3G9T082PROD with RULES
Consumer Protection Act of 1991, Notice of required during its term. No existing follows:
Proposed Rulemaking, published at 81 FR contract clause permits partial funding
31889, May 20, 2016 (2016 NPRM). of a contract action awarded during a PART 1032—CONTRACT FINANCING
CR. While other strategies are available
List of Subjects in 47 CFR Part 64 ■ 1. The authority citation for part 1032
to address the need to take contract
Claims, Communications common actions during a CR, these strategies— continues to read as follows:
carriers, Credit, Reporting and for example short-term awards—are Authority: 41 U.S.C. 1707.
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![80610 Federal Register / Vol. 81, No. 221 / Wednesday, November 16, 2016 / Rules and Regulations
officers are authorized, in appropriate be varied from 45, 60 to 90 days, and resolution (CR). The item(s) listed in the table
cases, to revise paragraph (a) of this the 75 percent from 75 to 85 percent: below are being incrementally funded as
clause to specify the work required described below. The funding allotted to
under the contract, in lieu of using Limitation of Government’s Obligation these item(s) is presently available for
contract line item numbers as well as (Nov 2016) payment and allotted to this contract. This
revise paragraph (c) of this clause to (a) Funding is not currently available to table will be updated by a modification to the
specify a different notification period fully fund this contract due to the contract when additional funds are made
and percentage. The 30-day period may Government operating under a continuing available, if any, to this contract.
Funds
Funds required for
Contract line item number CLIN allotted to complete
(CLIN) total price the funding of
CLIN the
CLIN
$ $ $
$ $ $
$ $ $
$ $ $
Totals ........................................................................................................................................... $ $ $
(b) For the incrementally funded item(s) authorizing termination for the convenience DEPARTMENT OF COMMERCE
identified in paragraph (a) of this clause, the of the Government. Failure to make the
Contractor agrees to perform up to the point notification required by this paragraph, National Oceanic and Atmospheric
at which the total amount payable by the whether for reasons within or beyond the Administration
Government, including any invoice payments Contractor’s control, will not increase the
to which the Contractor is entitled and
maximum amount payable to the Contractor 50 CFR Part 679
reimbursement of authorized termination
costs in the event of termination of those under paragraphs (a) and (b) of this clause.
[Docket No. 150916863–6211–02]
item(s) for the Government’s convenience, (d) The Government may at any time prior
does not exceed the total amount currently to termination allot additional funds for the RIN 0648–XF036
obligated to those item(s). The Contractor is performance of the item(s) identified in
not authorized to continue work on these paragraph (a) of this clause. Fisheries of the Exclusive Economic
item(s) beyond that point. The Government (e) The termination provisions of Zone Off Alaska; Pacific Cod in the
will not be obligated in any event to paragraphs (a) through (h) of this clause do Bering Sea and Aleutian Islands
reimburse the Contractor in excess of the not limit the rights of the Government under Management Area
amount allotted to the line items of the the clause entitled ‘‘Default’’ or ‘‘Termination
contract regardless of anything to the AGENCY: National Marine Fisheries
for Cause.’’ The provisions of this clause are Service (NMFS), National Oceanic and
contrary in any other clause, including but
limited to the work and allotment of funds
not limited to the clause entitled Atmospheric Administration (NOAA),
‘‘Termination for Convenience of the for the item(s) set forth in paragraph (a) of
Commerce.
Government’’ or paragraph (1) entitled this clause. This clause no longer applies
ACTION: Temporary rule; modification of
‘‘Termination for the Government’s once the contract is fully funded.
(f) Nothing in this clause affects the right
a closure.
Convenience’’ of the clause at FAR 52.212–
4, ‘‘Commercial Terms and Conditions of the Government to terminate this contract SUMMARY: NMFS is opening directed
Commercial Items.’’ pursuant to the Government’s termination for fishing for Pacific cod by catcher/
(c) Notwithstanding paragraph (h) of this convenience terms set forth in this contract. processors using pot gear in the Bering
clause, the Contractor shall notify the (g) Nothing in this clause shall be
Contracting Officer in writing at least thirty Sea and Aleutian Islands Management
construed as authorization of voluntary Area (BSAI). This action is necessary to
days prior to the date when, in the services whose acceptance is otherwise fully use the 2016 total allowable catch
Contractor’s best judgment, the work will
prohibited under 31 U.S.C. 1342. of Pacific cod allocated to catcher/
reach the point at which the total amount
payable by the Government, including any (h) The parties contemplate that the processors using pot gear in the BSAI.
cost for termination for convenience, will Government will allot funds to this contract
DATES: Effective 1200 hours, Alaska
approximate 85 percent of the total amount from time to time as the need arises and as
local time (A.l.t.), November 15, 2016,
then allotted to the contract for performance funds become available. There is no fixed
through 2400 hours, A.l.t., December 31,
of the item(s) identified in paragraph (a) of schedule for providing additional funds.
this clause. The notification shall state the
2016. Comments must be received at the
(End of clause) following address no later than 4:30
estimated date when that point will be
reached and an estimate of additional Dated: November 8, 2016. p.m., A.l.t., December 1, 2016.
funding, if any, needed to continue Iris B. Cooper, ADDRESSES: You may submit comments
performance. The notification shall also
Senior Procurement Executive, Office of the on this document, identified by NOAA–
advise the Contracting Officer of the NMFS–2015–0118, by any of the
Procurement Executive.
estimated amount of additional funds following methods:
[FR Doc. 2016–27548 Filed 11–15–16; 8:45 am]
required for the timely performance of the • Electronic Submission: Submit all
mstockstill on DSK3G9T082PROD with RULES
item(s) funded pursuant to this contract. If BILLING CODE 4810–25–P
electronic public comments via the
after such notification additional funds are
Federal e-Rulemaking Portal. Go to
not allotted by the date identified in the
Contractor’s notification, or by an agreed www.regulations.gov/
upon substitute date, the Contracting Officer #!docketDetail;D=NOAA-NMFS-2015-
will terminate any item(s) for which 0118, click the ‘‘Comment Now!’’ icon,
additional funds have not been allotted, complete the required fields, and enter
pursuant to the terms of this contract or attach your comments.
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Document Created: 2016-11-16 00:57:47
Document Modified: 2016-11-16 00:57:47
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Contact | Thomas O'Linn, Procurement Analyst, Office of the Procurement Executive, at (202) 622-2092. | |
| FR Citation | 81 FR 80608 | |
| CFR Citation | 48
CFR
1032 48 CFR 1052 |
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