Submission for OMB Review; Certain Federal Acquisition Regulation Part 32 Requirements

AGENCY:

Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).

ACTION:

Notice.

SUMMARY:

Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat Division has submitted to the Office of Management and Budget (OMB) a request to review and approve a revision of a previously approved information collection requirement regarding certain Federal Acquisition Regulation part 32 requirements.

DATES:

Submit comments on or before June 27, 2022.

ADDRESSES:

Written comments and recommendations for this information collection should be sent within 30 days of publication of this notice to www.reginfo.gov/public/do/PRAMain. Find this particular information collection by selecting “Currently under Review—Open for Public Comments” or by using the search function.

Additionally, submit a copy to GSA through https://www.regulations.gov and follow the instructions on the site. This website provides the ability to type short comments directly into the comment field or attach a file for lengthier comments.

Instructions: All items submitted must cite OMB Control No. 9000-0073, Certain Federal Acquisition Regulation Part 32 Requirements. 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 www.regulations.gov, approximately two-to-three days after submission to verify posting. If there are difficulties submitting comments, contact the GSA Regulatory Secretariat Division at 202-501-4755 or GSARegSec@gsa.gov.

FOR FURTHER INFORMATION CONTACT:

Zenaida Delgado, Procurement Analyst, at telephone 202-969-7207, or zenaida.delgado@gsa.gov.

SUPPLEMENTARY INFORMATION:

A. OMB Control Number, Title, and Any Associated Form(s)

9000-0073, Certain Federal Acquisition Regulation Part 32 Requirements

B. Needs and Uses

DoD, GSA, and NASA are combining OMB Control Nos. for the Federal Acquisition Regulation (FAR) by FAR part. This consolidation is expected to improve industry's ability to easily and efficiently identify burdens associated with a given FAR part. The review of the information collections by FAR part allows improved oversight to ensure there is no redundant or unaccounted for burden placed on industry. Lastly, combining information collections in a given FAR part is also expected to reduce the administrative burden associated with processing multiple information collections.

This justification supports the revision of OMB Control No. 9000-0073 and combines it with the previously approved information collections under OMB Control Nos. 9000-0070, 9000-0074, 9000-0102, and 9000-0144, with the new title “Certain Federal Acquisition Regulation Part 32 Requirements”. Upon approval of this consolidated information collection, OMB Control Nos. 9000-0070, 9000-0074, 9000-0102, and 9000-0144 will be discontinued. The burden requirements previously approved under the discontinued numbers will be covered under OMB Control No. 9000-0073.

This clearance covers the information that offerors, contractors, or both must submit to comply with the following FAR requirements:

FAR 32.408, Application for Advance Payments. In accordance with FAR 32.408(b), contractors requesting advance payments must submit their request in writing to the contracting officer and provide the following information:

○ A reference to the contract if the request concerns an existing contract, or a reference to the solicitation if the request concerns a proposed contract.

○ A cash flow forecast showing estimated disbursements and receipts for the period of contract performance.

○ The proposed total amount of advance payments.

○ The name and address of the financial institution at which the contractor expects to establish a special account as depository for the advance payments.

○ A description of the contractor's efforts to obtain unguaranteed private financing or a V-loan under eligible contracts.

○ Other information appropriate to an understanding of

the contractor's financial condition and need,

the contractor's ability to perform the contract without loss to the Government, and

financial safeguards needed to protect the Government's interest.

The information is used to determine if advance payments should be provided to the contractor.

FAR 52.232-1 through 52.232-4, 52.232-6, 52.232-7, and 52.232-10—Payments. The following FAR clauses require the contractor to (as appropriate to the payment terms specified in the contract) provide a proper invoice or voucher. The information is used to determine the proper amount of payments to Federal contractors.

○ 52.232-1, Payments.

○ 52.232-2, Payments under Fixed-Price Research and Development Contracts.

○ 52.232-3, Payments under Personal Services Contracts.

○ 52.232-4, Payments under Transportation Contracts and Transportation-Related Services Contracts.

○ 52.232-6, Payment under Communication Service Contracts with Common Carriers.

○ 52.232-7, Payments under Time-and-Materials and Labor-Hour Contracts.

○ 52.232-10, Payments under Fixed-Price Architect-Engineer Contracts.

“Proper invoice” is defined in FAR part 2 as an invoice that meets the minimum standards specified in FAR 32.905(b), which include the following items:

○ Name and address of the contractor.

○ Invoice date and invoice number.

○ Contract number or other authorization for supplies delivered or services performed (including order number and line item number).

○ Description, quantity, unit of measure, unit price, and extended price of supplies delivered or services performed.

○ Shipping and payment terms.

○ Name and address of contractor official to whom payment is to be sent.

○ Name (where practicable), title, phone number, and mailing address of person to notify in the event of a defective invoice.

○ Taxpayer Identification Number (TIN) if required by agency procedures.

○ Electronic funds transfer (EFT) banking information if required by agency procedures.

○ Any other information or documentation required by the contract ( e.g., evidence of shipment).

FAR 52.232-5, Payments under Fixed-Price Construction Contracts. This clause requires the contractor's request for progress payments to include the following substantiation:

○ An itemization of the amounts requested, related to the various elements of work required by the contract covered by the payment requested.

○ A listing of the amount included for work performed by each subcontractor under the contract.

○ A listing of the total amount of each subcontract under the contract.

○ A listing of the amounts previously paid to each such subcontractor under the contract.

○ Additional supporting data in a form and detail required by the contracting officer.

Paragraph (c) of FAR clause 52.232-5 requires contractors to provide a certification with each request for progress payment certifying that—

○ The amounts requested are only for performance in accordance with the specifications, terms, and conditions of the contract;

○ All payments due to subcontractors and suppliers from previous payments received under the contract have been made, and timely payments will be made from the proceeds of the payment covered by the certification;

○ The request for progress payment does not include any amounts which the prime contractor intends to withhold or retain from a subcontractor or supplier in accordance with the terms and conditions of the subcontract; and

○ The certification is not to be construed as final acceptance of a subcontractor's performance.

Paragraph (d) of FAR clause 52.232-5 requires contractors to notify contracting officers, if the contractor, after making a certified request for progress payments, discovers that a portion or all of the request constitutes a payment for performance by the contractor that fails to conform to the specifications, terms, and conditions of the contract. Contractors must notify the contracting officer that the performance deficiency has been corrected.

The information is used to determine the proper amount of payments to Federal contractors for construction contracts.

FAR 52.232-12, Advance Payments. If advance payments are authorized, this clause requires contractors to submit the following:

○ Per paragraph (g)—The financial institution agreement, in the form prescribed by the administering office, establishing the special account, and clearly setting forth the special character of the account and the responsibilities of the financial institution under the account.

○ Per paragraph (i)(3)—Notification of a lien in favor of the Government to a third person receiving any items or materials on which the Government has a lien, and a receipt from that third person acknowledging the existence of the lien. Contractors are also required to provide a copy of each receipt to the contracting officer.

○ Per paragraph (m)—(1) Monthly, signed or certified balance sheets and profit and loss statements together with a report on the operation of the special account in the form prescribed by the administering office; and (2) If requested, other information concerning the operation of the contractor's business. (This same requirement is at paragraph (j) of the clause with its Alternate V.)

If advance payments are authorized, the information is used to ensure proper procedures are followed to protect the Government's interest.

FAR 52.232-20 and 52.232-22—Limitation of Costs or Funds. FAR clause 52.232-20, Limitation of Cost, requires the contractor to notify the contracting officer in writing whenever it has reason to believe that—

○ The costs the contractors expect to incur under the contract in the next 60 days, when added to all costs previously incurred, will exceed 75 percent of the estimated cost of the contracts; or

○ The total cost for the performance of the contract will be greater or substantially less than estimated.

As part of the notification, the contractor must provide a revised estimate of the total cost of performing the contract.

FAR clause 52.232-22, Limitation of Funds, requires the contractor to notify the contracting officer in writing whenever it has reason to believe that the costs it expects to incur under the contract in the next 60 days, when added to all costs previously incurred, will exceed 75 percent of (1) the total amount so far allotted to the contract by the Government or, (2) if this is a cost-sharing contract, the amount then allotted to the contract by the Government plus the contractor's corresponding share. The notice must state the estimated amount of additional funds required to continue performance for the contract period. Sixty days before the end of the contract period, the contractor must notify the contracting officer in writing of the estimated amount of additional funds, if any, required to continue performance under the contract, and when the funds will be required.

The information is used to avoid cost overruns and to ensure that funding is available to complete work under Federal contracts.

FAR 52.232-27, Prompt Payment for Construction Contracts. Paragraph (a)(6)(ii) of FAR clause 52.232-27 requires contractors making a written demand to the designated payment office for additional penalty payment to support their demand with the following data:

• Specifically assert that late payment interest is due under a specific invoice, and request payment of all overdue late payment interest penalty and such additional penalty as may be required;
• Attach a copy of the invoice on which the unpaid late payment interest was due; and
• State that payment of the principal has been received, including the date of receipt.

Paragraph (e)(5) of FAR clause 52.232-27 requires contractors to notify contracting officers upon—

• Reduction of the amount of any subsequent certified application for payment; or

• Payment to the subcontractor of any withheld amounts of a progress payment, specifying: The amounts withheld; and the dates that the withholding began and ended.

Paragraph (g) of FAR clause 52.232-27 requires contractors to issue a written notice of any withholding to a subcontractor (with copy to the contracting officer), specifying—

• The amount to be withheld;
• The specific causes for the withholding under the terms of the subcontract; and
• The remedial actions to be taken by the subcontractor in order to receive payment of the amounts withheld.

Paragraph (l) of FAR clause 52.232-27 requires contractors to remit overpayments to the payment office cited in the contract along with a description that includes the following:

• Circumstances of the overpayment ( e.g., duplicate payment, erroneous payment, liquidation errors, date(s) of overpayment);

• Affected contract number and delivery order number if applicable;
• Affected line item or subline item, if applicable; and
• Contractor point of contact.

Contractors are required to provide a copy of the remittance and supporting documentation to the contracting officer.

The information is used to understand when the contractor withholds amounts from subcontractors and suppliers after the Government has already paid the contractor the amounts withheld.

FAR 52.232-34, Payment by Electronic Funds Transfer—Other than System for Award Management. This clause requires contractors to provide the following information to enable the Government to make payments under the contract by EFT:

○ The contract number (or other procurement identification number).

○ The contractor's name and remittance address.

○ The signature, title, and telephone number of the contractor official authorized to provide this information.

○ The name, address, and 9-digit Routing Transit Number of the contractor's financial agent.

○ The contractor's account number and the type of account.

○ If applicable, the Fedwire Transfer System telegraphic abbreviation of the contractor's financial agent.

○ If applicable, the contractor must provide the name, address, telegraphic abbreviation, and 9-digit Routing Transit Number of the correspondent financial institution receiving the wire transfer payment if the contractor's financial agent is not directly on-line to the Fedwire Transfer System.

The burden to provide the information required by the FAR clause at 52.232-33, Payment by Electronic Funds Transfer—System for Award Management, is covered by OMB Control Number 9000-0189, Certain Federal Acquisition Regulation Part 4 Requirements. OMB Control Number 9000-0189 accounts for new registrations and renewals in the System for Award Management, which includes providing the EFT information.

The information is used to enable the Government to make contract payments by EFT.

C. Annual Burden

Respondents: 275,319.

Total Annual Responses: 1,817,432.

Total Burden Hours: 471,947.

D. Public Comment

A 60-day notice was published in the Federal Register at 87 FR 1599, on March 21, 2022. Two comments were received; however, they did not change the estimate of the burden.

Comments: One of the comments is not related to the information collection. The other comment is a vendor's presentation of their products and services regarding payment solutions.

Response: The commenters did not express an opinion on whether the estimated number of burden hours is accurate; or ways to minimize the burden of the collection of information. The information collection revision does not reflect any changes to the FAR requirements. Adjustments are made to the public and Government burden estimates based on the most recent data available.

Obtaining Copies: Requesters may obtain a copy of the information collection documents from the GSA Regulatory Secretariat Division, by calling 202-501-4755 or emailing GSARegSec@gsa.gov. Please cite OMB Control No. 9000-0073, Certain Federal Acquisition Regulation Part 32 Requirements.