[Federal Register Volume 66, Number 158 (Wednesday, August 15, 2001)]
[Proposed Rules]
[Pages 42921-42923]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-20486]



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Part III





Department of Defense

General Services Administration

National Aeronautics and Space Administration





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48 CFR Part 2, et al.



Federal Acquisitions Regulation; Definition of ``Claim'' and Terms 
Relating to Termination; Proposed Rule

Federal Register / Vol. 66, No. 158 / Wednesday, August 15, 2001 / 
Proposed Rules

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 2, 17, 33, 49, and 52

[FAR Case 2000-406]
RIN 9000-AJ10


Federal Acquisition Regulation; Definition of ``Claim'' and Terms 
Relating to Termination

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

ACTION: Proposed rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) are proposing to amend the 
Federal Acquisition Regulation (FAR) to clarify and move the 
definitions of ``claim,'' and certain terms relating to termination.

DATES: Interested parties should submit comments in writing on or 
before October 15, 2001 to be considered in the formulation of a final 
rule.

ADDRESSES: Submit written comments to: General Services Administration, 
FAR Secretariat (MVP), 1800 F Street, NW, Room 4035, Attn: Laurie 
Duarte, Washington, DC 20405.
    Submit electronic comments via the Internet to: farcase.2000-406@gsa.gov
    Please submit comments only and cite FAR case 2000-406 in all 
correspondence related to this case.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS 
Building, Washington, DC, 20405, at (202) 501-4755 for information 
pertaining to status or publication schedules. For clarification of 
content, contact Ms. Linda Klein, Procurement Analyst, at (202) 501-
3775. Please cite FAR case 2000-406.

SUPPLEMENTARY INFORMATION:

A. Background

    This rule is one of a series of rules that considers moving 
definitions of terms that are located outside FAR 2.101 into FAR 2.101 
if the terms are used in more than one part of the FAR. This will 
clarify the applicability of definitions, eliminate redundant or 
conflicting definitions, and make them easier to find. The Councils do 
not intend to make any substantive changes to the FAR by these 
amendments.
    This proposed rule--
     Revises and moves the definitions of ``claim'' from 
33.201; ``continued portion of the contract,'' ``partial termination,'' 
``terminated portion of the contract'' from FAR 49.001; and 
``termination for convenience'' from FAR 17.103;
     Adds a definition of ``termination for default'' at FAR 
2.101 and a new paragraph 17.104(d) that explains the distinction 
between ``termination for convenience'';
     Revises FAR 33.213(a) to clarify the distinction between 
claims ``arising under a contract'' and claims ``relating to a 
contract'';
     Revises the definition of ``claim'' in the clause at FAR 
52.233-1 to conform to the definition at FAR 2.101; and
     Makes other editorial revisions for clarity.
    This rule was not subject to Office of Management and Budget review 
under Section 6(b) of Executive Order 12866, Regulatory Planning and 
Review, dated September 30, 1993. This rule is not a major rule under 5 
U.S.C. 804.

B. Regulatory Flexibility Act

    The Councils do not expect this proposed rule to 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., 
because, the rule does not change policy. An Initial Regulatory 
Flexibility Analysis has, therefore, not been performed. We invite 
comments from small businesses and other interested parties. The 
Councils will consider comments from small entities concerning the 
affected FAR Parts 2, 17, 33, 49, and 52 in accordance with 5 U.S.C. 
610. Interested parties must submit such comments separately and should 
cite 5 U.S.C. 601, et seq. (FAR case 2000-406), in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the proposed 
changes to the FAR do not impose information collection requirements 
that require the approval of the Office of Management and Budget under 
44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 2, 17, 33, 49, and 52

    Government procurement.

    Dated: August 9, 2001.
Gloria Sochon,
Acting Director, Acquisition Policy Division.

    Therefore, DoD, GSA, and NASA propose that 48 CFR parts 2, 17, 33, 
49, and 52 be amended as set forth below:
    1. The authority citation for 48 CFR parts 2, 17, 33, 49, and 52 
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).

PART 2--DEFINITIONS OF WORDS AND TERMS

    2. Amend section 2.101 by adding, in alphabetical order, the 
definitions ``Claim,'' ``Continued portion of the contract,'' ``Partial 
termination,'' ``Termination for convenience,'' ``Termination for 
default,'' and ``Terminated portion of the contract'' to read as 
follows:


2.101  Definitions.

* * * * *
    Claim means a written demand or written assertion by one of the 
contracting parties seeking, as a matter of right, the payment of money 
in a sum certain, the adjustment or interpretation of contract terms, 
or other relief arising under or relating to the contract. However, a 
written demand or written assertion by the contractor seeking the 
payment of money exceeding $100,000 is not a claim under the Contract 
Disputes Act of 1978 until certified as required by the Act. A voucher, 
invoice, or other routine request for payment that is not in dispute 
when submitted is not a claim. The submission may be converted to a 
claim, by written notice to the contracting officer as provided in 
33.206(a), if it is disputed either as to liability or amount or is not 
acted upon in a reasonable time.
* * * * *
    Continued portion of the contract means the portion of a contract 
that the contractor must continue to perform following a partial 
termination.
* * * * *
    Partial termination means the termination of a part, but not all, 
of the work that has not been completed and accepted under a contract.
* * * * *
    Termination for convenience means the exercise of the Government's 
right to completely or partially terminate performance of work under a 
contract when it is in the Government's interest.
    Termination for default means the exercise of the Government's 
right to completely or partially terminate a contract because of the 
contractor's actual or anticipated failure to perform its contractual 
obligations.
    Terminated portion of the contract means the portion of a contract 
that the contractor is not to perform following a partial termination. 
For construction contracts that have been completely terminated for 
convenience, it means

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the entire contract, notwithstanding the completion of, and payment 
for, individual items of work before termination.
* * * * *

PART 17--SPECIAL CONTRACTING METHODS


17.103  [Amended]

    3. In section 17.103, remove the definition ``Termination for 
convenience''.
    4. Amend section 17.104 by adding paragraph (d) to read as follows:


17.104  General.

* * * * *
    (d) The termination for convenience procedure may apply to any 
Government contract, including multiyear contracts. As contrasted with 
cancellation, termination can be effected at any time during the life 
of the contract (cancellation is effected between fiscal years) and can 
be for the total quantity or partial quantity (where as cancellation 
must be for all subsequent fiscal years'' quantities).

PART 31--CONTRACT COST PRINCIPLES AND PROCEDURES


31.205-47  [Amended]

    5. Amend section 31.205-47 in paragraph (f)(1) by removing ``(see 
33.201)''.

PART 33--PROTESTS, DISPUTES, AND APPEALS


33.201  [Amended]

    6. In section 33.201, remove the definition ``Claim.''
    7. Amend section 33.213 by revising paragraph (a) to read as 
follows:


33.213  Obligation to continue performance.

    (a) In general, before passage of the Act, the obligation to 
continue performance applied only to claims arising under a contract. 
However, the Act, at 41 U.S.C. 605(b), authorizes agencies to require a 
contractor to continue contract performance in accordance with the 
contracting officer's decision pending a final resolution of any claim 
arising under, or relating to, the contract. (A claim arising under a 
contract is a claim that can be resolved under a contract clause, other 
than the clause at 52.233-1, Disputes, that provides for the relief 
sought by the claimant; however, relief for such claim can also be 
sought under the clause at 52.233-1. A claim relating to a contract is 
a claim that cannot be resolved under a contract clause other than the 
clause at 52.233-1.) This distinction is recognized by the clause with 
its Alternate I (see 33.215).

PART 49--TERMINATION OF CONTRACTS


49.001  [Amended]

    8. In section 49.001, remove the definitions ``Claim,''
    ``Continued portion of the contract,'' ``Partial termination,'' and 
``Terminated portion of the contract.''

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    9. Section 52.233-1 is amended by revising the date and paragraph 
(c) of the clause; and in Alternate I by revising the date and the 
introductory paragraph to read as follows:


52.233-1  Disputes.

* * * * *

DISPUTES (DATE)

* * * * *
    (c) Claim, as used in this clause, means a written demand or 
written assertion by one of the contracting parties seeking, as a 
matter of right, the payment of money in a sum certain, the 
adjustment or interpretation of contract terms, or other relief 
arising under or relating to this contract. However, a written 
demand or written assertion by the Contractor seeking the payment of 
money exceeding $100,000 is not a claim under the Act until 
certified. A voucher, invoice, or other routine request for payment 
that is not in dispute when submitted is not a claim under the Act. 
The submission may be converted to a claim under the Act, by 
complying with the submission and certification requirements of this 
clause, if it is disputed either as to liability or amount or is not 
acted upon in a reasonable time.
* * * * *
    Alternate I (Date). As prescribed in 33.215, substitute the 
following paragraph (i) for paragraph (i) of the basic clause:
* * * * *
[FR Doc. 01-20486 Filed 8-14-01; 8:45 am]
BILLING CODE 6820-EP-P