[Federal Register Volume 61, Number 83 (Monday, April 29, 1996)] [Rules and Regulations] [Pages 18920-18921] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 96-10430] ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE 48 CFR Part 32 [FAC 90-38; FAR Case 94-767; Item III] RIN 9000-AG91 Federal Acquisition Regulation; Assignment of Claims; Presidential Delegation AGENCIES: Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This final rule is issued pursuant to the Federal Acquisition Streamlining Act of 1994 (Public Law 103-355) (FASA) to reflect the Presidential delegation of authority to make determinations of need and to provide guidance for determinations of need made in accordance with the Presidential delegation dated October 3, 1995. This regulatory action was subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993. It is not a major rule under 5 U.S.C. 804. EFFECTIVE DATE: June 28, 1996. FOR FURTHER INFORMATION CONTACT: Mr. John Galbraith, Finance/Payment Team Leader, at (703) 697-6710, in reference to this case. For general information, contact the FAR Secretariat, Room 4037, 18th & F Streets NW., Washington, DC 20405, (202) 501-4755. Please cite FAC 90-38, FAR Case 94-767 in all correspondence related to this case. SUPPLEMENTARY INFORMATION: A. Background The statutes authorizing assignments of claims under Federal contracts provide authority for the Government to make no-setoff commitments under certain conditions. FASA established a requirement for a determination of need by the President. Implementation was published in the Federal Register, at 60 FR 49729, on September 26, 1995, as FAR Case 94-761. The President, on October 3, 1995, delegated the authority to make determinations of need to the Secretaries of Defense and Energy, the Administrator of General Services, and the heads of all other departments or agencies, subject to such additional guidance as provided by the Administrator of the Office of Federal Procurement Policy. The Administrator of Procurement Policy, in accordance [[Page 18921]] with the President's delegation, has provided guidance for exercise of the authority delegated by the President to make determinations of need to make no-setoff commitments under contracts containing assignment of claims clauses. Because this guidance is administrative in nature and has no significant impact upon the public, it is being published as a final rule. B. Regulatory Flexibility Act As noted above, this rule implements a change in authority for existing policy and procedures in the FAR. This change in authority to be cited does not change the usage of the procedure (the no-setoff commitment) or the impact upon small entities. Thus, this final rule does not constitute a significant FAR revision within the meaning of FAR 1.501 and Public Law 98-577, and publication for public comments is not required. Therefore, the Regulatory Flexibility Act does not apply. However, comments from small entities concerning the affected FAR subpart will be considered in accordance with Section 610 of the Act. Such comments must be submitted separately and cite 5 U.S.C. 601 et seq., (FAC 90-38, FAR Case 94-767) in correspondence. C. Paperwork Reduction Act The Paperwork Reduction Act does not apply because the changes to the FAR do not impose recordkeeping or information collection requirements, or collections of information from offerors, contractors, or members of the public which require the approval of the Office of Management and Budget under 44 U.S.C. 3501 et seq. List of Subjects in 48 CFR Part 32 Government procurement. Dated: April 18, 1996. Edward C. Loeb, Deputy Project Manager for the Implementation of the Federal Acquisition Streamlining Act of 1994. Therefore, 48 CFR Part 32 is amended as set forth below: PART 32--CONTRACT FINANCING 1. The authority citation for 48 CFR Part 32 continues to read as follows: Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c). 2. Section 32.803 is amended by revising paragraph (d) to read as follows: 32.803 Policies. * * * * * (d) Any contract of a designated agency (see FAR 32.801), except a contract under which full payment has been made, may include a no- setoff commitment only when a determination of need is made by the head of the agency, in accordance with the Presidential delegation of authority dated October 3, 1995, and after such determination has been published in the Federal Register. The Presidential delegation makes such determinations of need subject to further guidance issued by the Office of Federal Procurement Policy. The following guidance has been provided: Use of the no-setoff provision may be appropriate to facilitate the national defense; in the event of a national emergency or natural disaster; or when the use of the no-setoff provision may facilitate private financing of contract performance. However, in the event an offeror is significantly indebted to the United States, the contracting officer should consider whether the inclusion of the no- setoff commitment in a particular contract is in the best interests of the United States. In such an event, the contracting officer should consult with the Government officer(s) responsible for collecting the debt(s). * * * * * Section 32.806 is amended by revising paragraph (a)(2) to read as follows: 32.806 Contract clause. (a) * * * (2) If a no-setoff commitment has been authorized (see FAR 32.803(d)), the contracting officer shall use the clause with its Alternate I. * * * * * [FR Doc. 96-10430 Filed 4-26-96; 8:45 am] BILLING CODE 6820-EP-P