[Federal Register Volume 86, Number 73 (Monday, April 19, 2021)]
[Proposed Rules]
[Pages 20359-20360]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-07817]


=======================================================================
-----------------------------------------------------------------------

GENERAL SERVICES ADMINISTRATION

48 CFR Part 532

[GSAR Case 2020-G521; Docket No. 2021-0008; Sequence No. 1]
RIN 3090-AK35


General Services Administration Acquisition Regulation; Remove 
Office of General Counsel Review for Final Payments

AGENCY: Office of Acquisition Policy, General Services Administration 
(GSA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: GSA is proposing to amend the General Services Administration 
Acquisition Regulation (GSAR) to revise internal agency approval 
procedures for processing a final payment for construction and building 
service contracts where, after 60 days, a contracting officer is unable 
to obtain a release of claims from a contractor.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat Division at the address shown below on or before 
June 18, 2021 to be considered in the formation of the final rule.

ADDRESSES: Submit comments in response to GSAR Case 2020-G521 to: 
Regulations.gov: https://www.regulations.gov. Submit comments via the 
Federal eRulemaking portal by searching for ``GSAR Case 2020-G521''. 
Select the link ``Comment Now'' that corresponds with GSAR Case 2020-
G521. Follow the instructions provided at the ``Comment Now'' screen. 
Please include your name, company name (if any), and ``GSAR Case 2020-
G521'' on your attached document. If your comment cannot be submitted 
using https://www.regulations.gov, call or email the points of contact 
in the FOR FURTHER INFORMATION CONTACT section of this document for 
alternate instructions.
    Instructions: Please submit comments only and cite GSAR Case 2020-
G521 in all correspondence related to this case. 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 https://www.regulations.gov approximately two to three days after submission to 
verify posting.

FOR FURTHER INFORMATION CONTACT: Mr. Logan Kemp, GSA Acquisition Policy 
Division, at 202-969-4066 or by email at [email protected], for 
clarification of content. For information pertaining to status or 
publication schedules, contact the Regulatory Secretariat Division at 
202-501-4755 or [email protected]. Please cite GSAR Case 2020-G521.

SUPPLEMENTARY INFORMATION: 

I. Background

    GSA is proposing to amend the General Services Administration 
Regulations (GSAR) to modify GSAR 532.905-70 so it no longer requires 
contracting officers to obtain approval of legal counsel before 
processing final payments for construction and building service 
contracts where, after 60 days, the contracting officer is unable to

[[Page 20360]]

obtain a release of claims from the contractors. Legal review is not a 
statutory requirement, and the decision to process final payments in 
such cases is a business decision, rather than a legal one.

II. Authority for This Rulemaking

    Title 40 of the United States Code (U.S.C.) Section 121 authorizes 
GSA to issue regulations, including the GSAR, to control the 
relationship between GSA and contractors.

III. Discussion and Analysis

    Prior to this rule, GSA guidance on final payments for construction 
and building service contracts provided that, ``in cases where, after 
60 days from the initial attempt, the contracting officer is unable to 
obtain a release of claims from the contractor, the final payment may 
be processed with the approval of assigned legal counsel.'' GSA is 
proposing to amend GSAR 532.905-70(c) by removing the legal approval 
requirement because this is a business decision to be made by the 
contracting officer, not a legal decision. Therefore, if there is 
implementation of this proposed rule, a contracting officer may instead 
process a final payment in such a situation after documenting in the 
contract file: (i) That the contracting officer requested a release of 
claims from the contractor and did not receive a response within 60 
calendar days; and (ii) approval to process the final payment from one 
level above the contracting officer.

IV. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This rule has been reviewed and determined by Office of Management and 
Budget (OMB) not to be a significant regulatory action and, therefore, 
was not subject to review under section 6(b) of E.O. 12866, Regulatory 
Planning and Review, dated September 30, 1993.

V. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a ``major rule'' may take effect, the 
agency promulgating the rule must submit a rule report, which includes 
a copy of the rule, to each House of the Congress and to the 
Comptroller General of the United States. A major rule cannot take 
effect until 60 days after it is published in the Federal Register. 
This rule has been reviewed and determined by OMB not to be a ``major 
rule'' under 5 U.S.C. 804(2).

VI. Regulatory Flexibility Act

    GSA does 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.
    Therefore, an Initial Regulatory Flexibility Analysis has not been 
performed. GSA invites comments from small business concerns and other 
interested parties on the expected impact of this rule on small 
entities.
    GSA will also consider comments from small entities concerning the 
existing regulations in subparts affected by the rule in accordance 
with 5 U.S.C. 610. Interested parties must submit such comments 
separately and should cite 5 U.S.C. 610 (GSAR Case 2020-G521), in 
correspondence.

VII. Paperwork Reduction Act

    This rule does not contain any information collection requirements 
that require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act (44 U.S.C. 35, et seq.).

List of Subjects in 48 CFR Part 532

    Government procurement.

Jeffrey A. Koses,
Senior Procurement Executive, Office of Acquisition Policy, Office of 
Government-wide Policy, General Services Administration.

    Therefore, GSA proposes to amend 48 CFR part 532 as set forth 
below:

PART 532--CONTRACT FINANCING

0
1. The authority citation for 48 CFR part 532 continues to read as 
follows:

    Authority:  40 U.S.C. 121(c).

0
2. Amend section 532.905-70 by--
0
a. Removing from paragraph (a) ``amount due the Contractor'' and adding 
``amount due to the contractor'' in its place;
0
b. Revising paragraph (b); and
0
c. Removing paragraphs (c) and (d).
    The revision reads as follows:


532.905-70   Final payment--construction and building service 
contracts.

* * * * *
    (b) A contracting officer may only process the final payment for a 
construction or building service contract once:
    (1) The contractor submits a properly executed GSA Form 1142, 
Release of Claims; or
    (2) The contracting officer documents in the contract file:
    (i) That the contracting officer requested a release of claims from 
the contractor and did not receive a response within 60 calendar days; 
and
    (ii) Approval to process the final payment from one level above the 
contracting officer.

[FR Doc. 2021-07817 Filed 4-16-21; 8:45 am]
BILLING CODE 6820-61-P