Federal Acquisition Regulation
Part 27 - Patents, Data, and Copyrights
27.000 Scope of part.
This part prescribes the policies, procedures, solicitation provisions, and contract clauses pertaining to patents, data, and copyrights.
United States, as used in this part, means the 50 States and the District of Columbia, U.S. territories and possessions, Puerto Rico, and the Northern Mariana Islands.
Part 28 - Bonds and Insurance
28.000 Scope of part.
This part prescribes requirements for obtaining financial protection against losses under contracts that result from the use of the sealed bid or negotiated methods. It covers bid guarantees, bonds, alternative payment protections, security for bonds, and insurance.
As used in this part-
Attorney-in-fact means an agent, independent agent, underwriter, or any other company or individual holding a power of attorney granted by a surety (see also "power of attorney" at 2.101).
Bid means any response to a solicitation, including a proposal under a negotiated acquisition. See the definition of "offer" at 2.101.
Bid guarantee means a form of security assuring that the bidder-
(1) Will not withdraw a bid within the period specified for acceptance; and
(2) Will execute a written contract and furnish required bonds, including any necessary coinsurance or reinsurance agreements, within the time specified in the bid, unless a longer time allowed, after receipt of the specified forms.
Bidder means any entity that is responding or has responded to a solicitation, including an offeror under a negotiated acquisition.
Bond means a written instrument executed by a bidder or contractor (the "principal"), and a second party (the "surety" or "sureties") (except as provided in 28.204), to assure fulfillment of the principal’s obligations to a third party (the "obligee" or "Government"), identified in the bond. If the principal’s obligations are not met, the bond assures payment, to the extent stipulated, of any loss sustained by the obligee. The types of bonds and related documents are as follows:
(1) An advance payment bond secures fulfillment of the contractor’s obligations under an advance payment provision.
(2) An annual bid bond is a single bond furnished by a bidder, in lieu of separate bonds, which secure all bids (on other than construction contracts) requiring bonds submitted during a specific Government fiscal year.
(3) An annual performance bond is a single bond furnished by a contractor, in lieu of separate performance bonds, to secure fulfillment of the contractor’s obligations under contracts (other than construction contracts) requiring bonds entered into during a specific Government fiscal year.
(4) A patent infringement bond secures fulfillment of the contractor’s obligations under a patent provision.
(5) A payment bond assures payments as required by law to all persons supplying labor or material in the prosecution of the work provided for in the contract.
(6) A performance bond secures performance and fulfillment of the contractor’s obligations under the contract.
Consent of surety means an acknowledgment by a surety that its bond given in connection with a contract continues to apply to the contract as modified.
Penal sum or "penal amount" means the amount of money specified in a bond (or a percentage of the bid price in a bid bond) as the maximum payment for which the surety is obligated or the amount of security required to be pledged to the Government in lieu of a corporate or individual surety for the bond.
Reinsurance means a transaction which provides that a surety, for a consideration, agrees to indemnify another surety against loss which the latter may sustain under a bond which it has issued.
Part 29 - Taxes
29.000 Scope of part.
This part prescribes policies and procedures for (a) using tax clauses in contracts (including foreign contracts), (b) asserting immunity or exemption from taxes, and (c) obtaining tax refunds. It explains Federal, State, and local taxes on certain supplies and services acquired by executive agencies and the applicability of such taxes to the Federal Government. It is for the general information of Government personnel and does not present the full scope of the tax laws and regulations.
As used in this part—
North Atlantic Treaty Organization (NATO) Forces means the Members of the Force, Members of the Civilian Component, NATO Personnel and all property, equipment, and materiel of NATO, NATO Member States, and Operational Partners present in the territory of Afghanistan.
U.S. Forcesmeans the entity comprising the members of the force and of the civilian component, and all property, equipment, and materiel of the United States Armed Forces present in the territory of Afghanistan.
Part 30 - Cost Accounting Standards Administration
30.000 Scope of part.
This part describes policies and procedures for applying the Cost Accounting Standards Board (CASB) rules and regulations ( 48 CFR Chapter 99) to negotiated contracts and subcontracts. This part does not apply to sealed bid contracts or to any contract with a small business concern (see 48 CFR 9903.201-1(b) for these and other exemptions).
As used in this part-
Affected CAS-covered contract or subcontract means a contract or subcontract subject to Cost Accounting Standards (CAS) rules and regulations for which a contractor or subcontractor-
(1) Used one cost accounting practice to estimate costs and a changed cost accounting practice to accumulate and report costs under the contract or subcontract; or
(2) Used a noncompliant practice for purposes of estimating or accumulating and reporting costs under the contract or subcontract.
Cognizant Federal agency official (CFAO) means the contracting officer assigned by the cognizant Federal agency to administer the CAS.
Desirable change means a compliant change to a contractor’s established or disclosed cost accounting practices that the CFAO finds is desirable and not detrimental to the Government and is, therefore, not subject to the no increased cost prohibition provisions of CAS-covered contracts and subcontracts affected by the change.
Fixed-price contracts and subcontracts means-
(2) Fixed-price incentive contracts and subcontracts where the price is not adjusted based on actual costs incurred ( subpart 16.4);
(3) Orders issued under indefinite-delivery contracts and subcontracts where final payment is not based on actual costs incurred ( subpart 16.5); and
(4) The fixed-hourly rate portion of time-and-materials and labor-hours contracts and subcontracts ( subpart 16.6).
Flexibly-priced contracts and subcontracts means-
(2) Cost-reimbursement contracts and subcontracts ( subpart 16.3);
(3) Incentive contracts and subcontracts where the price may be adjusted based on actual costs incurred ( subpart 16.4);
(4) Orders issued under indefinite-delivery contracts and subcontracts where final payment is based on actual costs incurred ( subpart 16.5); and
(5) The materials portion of time-and-materials contracts and subcontracts ( subpart 16.6).
Noncompliance means a failure in estimating, accumulating, or reporting costs to-
(1) Comply with applicable CAS; or
(2) Consistently follow disclosed or established cost accounting practices.
Required change means-
(1) A change in cost accounting practice that a contractor is required to make in order to comply with applicable Standards, modifications or interpretations thereto, that subsequently becomes applicable to an existing CAS-covered contract or subcontract due to the receipt of another CAS-covered contract or subcontract; or
(2) A prospective change to a disclosed or established cost accounting practice when the CFAO determines that the former practice was in compliance with applicable CAS and the change is necessary for the contractor to remain in compliance.
Unilateral change means a change in cost accounting practice from one compliant practice to another compliant practice that a contractor with a CAS-covered contract(s) or subcontract(s) elects to make that has not been deemed a desirable change by the CFAO and for which the Government will pay no aggregate increased costs.
Subpart 30.3 - CAS Rules and Regulations [Reserved]
Note: See 48 CFR 9903.3.
Subpart 30.4 - Cost Accounting Standards [Reserved]
Note: See 48 CFR Part 9904.
Subpart 30.5 - Cost Accounting Standards for Educational Institutions [Reserved]
Note: See 48 CFR Part 9905.
Part 31 - Contract Cost Principles and Procedures
31.000 Scope of part.
This part contains cost principles and procedures for-
(a) The pricing of contracts, subcontracts, and modifications to contracts and subcontracts whenever cost analysis is performed (see 15.404-1(c)); and
(b) The determination, negotiation, or allowance of costs when required by a contract clause.
As used in this part-
Accrued benefit cost method means an actuarial cost method under which units of benefits are assigned to each cost accounting period and are valued as they accrue; i.e., based on the services performed by each employee in the period involved. The measure of normal cost under this method for each cost accounting period is the present value of the units of benefit deemed to be credited to employees for service in that period. The measure of the actuarial accrued liability at a plan’s inception date is the present value of the units of benefit credited to employees for service prior to that date. (This method is also known as the unit credit cost method without salary projection.).
Accumulating costs means collecting cost data in an organized manner, such as through a system of accounts.
Actual cash value means the cost of replacing damaged property with other property of like kind and quality in the physical condition of the property immediately before the damage.
Actual costs means (except for subpart 31.6) amounts determined on the basis of costs incurred, as distinguished from forecasted costs. Actual costs include standard costs properly adjusted for applicable variances.
Actuarial accrued liability means pension cost attributable, under the actuarial cost method in use, to years prior to the current period considered by a particular actuarial valuation. As of such date, the actuarial accrued liability represents the excess of the present value of future benefits and administrative expenses over the present value of future normal costs for all plan participants and beneficiaries. The excess of the actuarial accrued liability over the actuarial value of the assets of a pension plan is the unfunded actuarial liability. The excess of the actuarial value of the assets of a pension plan over the actuarial accrued liability is an actuarial surplus and is treated as a negative unfunded actuarial liability.
Actuarial assumption means an estimate of future conditions affecting pension cost; e.g., mortality rate, employee turnover, compensation levels, earnings on pension plan assets, and changes in values of pension plan assets.
Actuarial cost method means a technique which uses actuarial assumptions to measure the present value of future pension benefits and pension plan administrative expenses, and that assigns the cost of such benefits and expenses to cost accounting periods. The actuarial cost method includes the asset valuation method used to determine the actuarial value of the assets of a pension plan.
Actuarial gain and loss means the effect on pension cost resulting from differences between actuarial assumptions and actual experience.
Actuarial valuation means the determination, as of a specified date, of the normal cost, actuarial accrued liability, actuarial value of the assets of a pension plan, and other relevant values for the pension plan.
Allocate means to assign an item of cost, or a group of items of cost, to one or more cost objectives. This term includes both direct assignment of cost and the reassignment of a share from an indirect cost pool.
Compensated personal absence means any absence from work for reasons such as illness, vacation, holidays, jury duty, military training, or personal activities for which an employer pays compensation directly to an employee in accordance with a plan or custom of the employer.
Compensation for personal services means all remuneration paid currently or accrued, in whatever form and whether paid immediately or deferred, for services rendered by employees to the contractor.
Cost input means the cost, except general and administrative (G&A) expenses, which for contract costing purposes is allocable to the production of goods and services during a cost accounting period.
Cost objective means (except for subpart 31.6) a function, organizational subdivision, contract, or other work unit for which cost data are desired and for which provision is made to accumulate and measure the cost of processes, products, jobs, capitalized projects, etc.
Deferred compensation means an award made by an employer to compensate an employee in a future cost accounting period or periods for services rendered in one or more cost accounting periods before the date of the receipt of compensation by the employee. This definition shall not include the amount of year end accruals for salaries, wages, or bonuses that are to be paid within a reasonable period of time after the end of a cost accounting period.
Defined-benefit pension plan means a pension plan in which the benefits to be paid, or the basis for determining such benefits, are established in advance and the contributions are intended to provide the stated benefits.
Defined-contribution pension plan means a pension plan in which the contributions to be made are established in advance and the benefits are determined thereby.
Directly associated cost means any cost which is generated solely as a result of the incurrence of another cost, and which would not have been incurred had the other cost not been incurred.
Estimating costs means the process of forecasting a future result in terms of cost, based upon information available at the time.
Expressly unallowable cost means a particular item or type of cost which, under the express provisions of an applicable law, regulation, or contract, is specifically named and stated to be unallowable.
Final cost objective means (except for subparts 31.3 and 31.6) a cost objective that has allocated to it both direct and indirect costs and, in the contractor’s accumulation system, is one of the final accumulation points.
Fiscal year means the accounting period for which annual financial statements are regularly prepared, generally a period of 12 months, 52 weeks, or 53 weeks.
Funded pension cost means the portion of pension cost for a current or prior cost accounting period that has been paid to a funding agency.
Home office means an office responsible for directing or managing two or more, but not necessarily all, segments of an organization. It typically establishes policy for, and provides guidance to, the segments in their operations. It usually performs management, supervisory, or administrative functions, and may also perform service functions in support of the operations of the various segments. An organization which has intermediate levels, such as groups, may have several home offices which report to a common home office. An intermediate organization may be both a segment and a home office.
Immediate-gain actuarial cost method means any of the several actuarial cost methods under which actuarial gains and losses are included as part of the unfunded actuarial liability of the pension plan, rather than as part of the normal cost of the plan.
Independent research and development (IR&D) cost means the cost of effort which is neither sponsored by a grant, nor required in performing a contract, and which falls within any of the following four areas-
(a) Basic research,
(b) Applied research,
(c) Development, and
(d) Systems and other concept formulation studies.
Insurance administration expenses means the contractor’s costs of administering an insurance program; e.g., the costs of operating an insurance or risk-management department, processing claims, actuarial fees, and service fees paid to insurance companies, trustees, or technical consultants.
Intangible capital asset means an asset that has no physical substance, has more than minimal value, and is expected to be held by an enterprise for continued use or possession beyond the current accounting period for the benefits it yields.
Job means a homogeneous cluster of work tasks, the completion of which serves an enduring purpose for the organization. Taken as a whole, the collection of tasks, duties, and responsibilities constitutes the assignment for one or more individuals whose work is of the same nature and is performed at the same skill/responsibility level-as opposed to a position, which is a collection of tasks assigned to a specific individual. Within a job, there may be pay categories which are dependent on the degree of supervision required by the employee while performing assigned tasks which are performed by all persons with the same job.
Job class of employees means employees performing in positions within the same job.
Labor cost at standard means a preestablished measure of the labor element of cost, computed by multiplying labor-rate standard by labor-time standard.
Labor market means a place where individuals exchange their labor for compensation. Labor markets are identified and defined by a combination of the following factors-
(2) Education and/or technical background required,
(3) Experience required by the job,
(4) Licensing or certification requirements,
(5) Occupational membership, and
Labor-rate standard means a preestablished measure, expressed in monetary terms, of the price of labor.
Labor-time standard means a preestablished measure, expressed in temporal terms, of the quantity of labor.
Material cost at standard means a preestablished measure of the material elements of cost, computed by multiplying material-price standard by material-quantity standard.
Material-price standard means a preestablished measure, expressed in monetary terms, of the price of material.
Material-quantity standard means a preestablished measure, expressed in physical terms, of the quantity of material.
Moving average cost means an inventory costing method under which an average unit cost is computed after each acquisition by adding the cost of the newly acquired units to the cost of the units of inventory on hand and dividing this figure by the new total number of units.
Nonqualified pension plan means any pension plan other than a qualified pension plan as defined in this part.
Normal cost means the annual cost attributable, under the actuarial cost method in use, to current and future years as of a particular valuation date excluding any payment in respect of an unfunded actuarial liability.
Original complement of low cost equipment means a group of items acquired for the initial outfitting of a tangible capital asset or an operational unit, or a new addition to either. The items in the group individually cost less than the minimum amount established by the contractor for capitalization for the classes of assets acquired but in the aggregate they represent a material investment. The group, as a complement, is expected to be held for continued service beyond the current period. Initial outfitting of the unit is completed when the unit is ready and available for normal operations.
Pay-as-you-go cost method means a method of recognizing pension cost only when benefits are paid to retired employees or their beneficiaries.
Pension plan means a deferred compensation plan established and maintained by one or more employers to provide systematically for the payment of benefits to plan participants after their retirements, provided that the benefits are paid for life or are payable for life at the option of the employees. Additional benefits such as permanent and total disability and death payments, and survivorship payments to beneficiaries of deceased employees, may be an integral part of a pension plan.
Pension plan participant means any employee or former employee of an employer or any member or former member of an employee organization, who is or may become eligible to receive a benefit from a pension plan which covers employees of such employer or members of such organization who have satisfied the plan’s participation requirements, or whose beneficiaries are receiving or may be eligible to receive any such benefit. A participant whose employment status with the employer has not been terminated is an active participant of the employer’s pension plan.
Projected benefit cost method means either-
(1) Any of the several actuarial cost methods that distribute the estimated total cost of all of the employees’ prospective benefits over a period of years, usually their working careers; or
(2) A modification of the accrued benefit cost method that considers projected compensation levels.
Proposal means any offer or other submission used as a basis for pricing a contract, contract modification, or termination settlement or for securing payments thereunder.
Qualified pension plan means a pension plan comprising a definite written program communicated to and for the exclusive benefit of employees that meets the criteria deemed essential by the Internal Revenue Service as set forth in the Internal Revenue Code for preferential tax treatment regarding contributions, investments, and distributions. Any other plan is a nonqualified pension plan.
Self-insurance charge means a cost which represents the projected average loss under a self-insurance plan.
Service life means the period of usefulness of a tangible capital asset (or group of assets) to its current owner. The period may be expressed in units of time or output. The estimated service life of a tangible capital asset (or group of assets) is a current forecast of its service life and is the period over which depreciation cost is to be assigned.
Spread-gain actuarial cost method means any of the several projected benefit actuarial cost methods under which actuarial gains and losses are included as part of the current and future normal costs of the pension plan.
Standard cost means any cost computed with the use of preestablished measures.
Tangible capital asset means an asset that has physical substance, more than minimal value, and is expected to be held by an enterprise for continued use or possession beyond the current accounting period for the services it yields.
Termination of employment gain or loss means an actuarial gain or loss resulting from the difference between the assumed and actual rates at which pension plan participants separate from employment for reasons other than retirement, disability, or death.
Variance means the difference between a preestablished measure and an actual measure.
Weighted average cost means an inventory costing method under which an average unit cost is computed periodically by dividing the sum of the cost of beginning inventory plus the cost of acquisitions by the total number of units included in these two categories.
Welfare benefit fund means a trust or organization which receives and accumulates assets to be used either for the payment of postretirement benefits, or for the purchase of such benefits, provided such accumulated assets form a part of a postretirement benefit plan.
31.002 Availability of accounting guide.
Contractors needing assistance in developing or improving their accounting systems and procedures may request a copy of the Defense Contract Audit Agency Pamphlet No.7641.90, Information for Contractors. The pamphlet is available via the Internet at http://www.dcaa.mil.
Subpart 31.4 - [Reserved]
Subpart 31.5 - [Reserved]
Part 32 - Contract Financing
32.000 Scope of part.
This part prescribes policies and procedures for contract financing and other payment matters. This part addresses-
(a) Payment methods, including partial payments and progress payments based on percentage or stage of completion;
(b) Loan guarantees, advance payments, and progress payments based on costs;
(c) Administration of debts to the Government arising out of contracts;
(d) Contract funding, including the use of contract clauses limiting costs or funds;
(e) Assignment of claims to aid in private financing;
(f) Selected payment clauses;
(g) Financing of purchases of commercial products and commercial services;
(h) Performance-based payments; and
(i) Electronic funds transfer payments.
As used in this part—
Commercial interim payment means any payment that is not a commercial advance payment or a delivery payment. These payments are contract financing payments for prompt payment purposes (i.e., not subject to the interest penalty provisions of the Prompt Payment Act in accordance with subpart 32.9). A commercial interim payment is given to the contractor after some work has been done, whereas a commercial advance payment is given to the contractor when no work has been done.
Contract action means an action resulting in a contract, as defined in subpart 2.1, including actions for additional supplies or services outside the existing contract scope, but not including actions that are within the scope and under the terms of the existing contract, such as contract modifications issued pursuant to the Changes clause, or funding and other administrative changes.
Contract financing payment means an authorized Government disbursement of monies to a contractor prior to acceptance of supplies or services by the Government.
(1) Contract financing payments include-
(i) Advance payments;
(ii) Performance-based payments;
(iii) Commercial advance and interim payments;
(iv) Progress payments based on cost under the clause at 52.232-16, Progress Payments;
(v) Progress payments based on a percentage or stage of completion (see 32.102(e)), except those made under the clause at 52.232-5, Payments Under Fixed-Price Construction Contracts, or the clause at 52.232-10, Payments Under Fixed-Price Architect-Engineer Contracts; and
(vi) Interim payments under a cost reimbursement contract, except for a cost reimbursement contract for services when Alternate I of the clause at 52.232-25, Prompt Payment, is used.
(2) Contract financing payments do not include-
(i) Invoice payments;
(ii) Payments for partial deliveries; or
(iii) Lease and rental payments.
Customary contract financing means that financing deemed by an agency to be available for routine use by contracting officers. Most customary contract financing arrangements should be usable by contracting officers without specific reviews or approvals by higher management.
Delivery payment means a payment for accepted supplies or services, including payments for accepted partial deliveries. Commercial financing payments are liquidated by deduction from these payments. Delivery payments are invoice payments for prompt payment purposes.
Designated billing office means the office or person (governmental or nongovernmental) designated in the contract where the contractor first submits invoices and contract financing requests. The contract might designate different offices to receive invoices and contract financing requests. The designated billing office might be-
(1) The Government disbursing office;
(2) The contract administration office;
(3) The office accepting the supplies delivered or services performed by the contractor;
(4) The contract audit office; or
(5) A nongovernmental agent.
Designated payment office means the office designated in the contract to make invoice payments or contract financing payments. Normally, this will be the Government disbursing office.
Due date means the date on which payment should be made.
Invoice payment means a Government disbursement of monies to a contractor under a contract or other authorization for supplies or services accepted by the Government.
Invoice payments include-
Payments for partial deliveries that have been accepted by the Government;
Final cost or fee payments where amounts owed have been settled between the Government and the contractor;
For purposes of subpart 32.9 only, all payments made under the clause at 52.232-5, Payments Under Fixed-Price Construction Contracts, and the clause at 52.232-10, Payments Under Fixed-Price Architect-Engineer Contracts; and
Interim payments under a cost-reimbursement contract for services when Alternate I of the clause at 52.232-25, Prompt Payment, is used
Invoice payments do not include contract financing payments.
Liquidate means to decrease a payment for an accepted supply item or service under a contract for the purpose of recouping financing payments previously paid to the contractor.
Unusual contract financing means any financing not deemed customary contract financing by the agency. Unusual contract financing is financing that is legal and proper under applicable laws, but that the agency has not authorized contracting officers to use without specific reviews or approvals by higher management.
32.002 Applicability of subparts.
(a) The following sections and subparts of this part are applicable to all purchases subject to part 32:
(2) subpart 32.3, Loan Guarantees for Defense Production.
(3) subpart 32.6, Contract Debts.
(4) subpart 32.7, Contract Funding.
(5) subpart 32.8, Assignment of Claims.
(6) subpart 32.9, Prompt Payment.
(7) subpart 32.11, Electronic Funds Transfer.
(c) The following subparts of this part are applicable to all purchases made under any authority other than part 12:
(1) subpart 32.1, Financing for Other Than a Commercial Purchase.
(2) subpart 32.4, Advance Payments for Other Than Commercial Acquisitions.
(3) subpart 32.5, Progress Payments Based on Costs.
(4) subpart 32.10, Performance-Based Payments.
32.003 Simplified acquisition procedures financing.
Unless agency regulations otherwise permit, contract financing shall not be provided for purchases made under the authority of part 13.
32.004 Contract performance in foreign countries.
The enforceability of contract provisions for security of Government financing in a foreign jurisdiction is dependent upon local law and procedure. Prior to providing contract financing where foreign jurisdictions may become involved, the contracting officer shall ensure the Government’s security is enforceable. This may require the provision of additional or different security than that normally provided for in the standard contract clauses.
32.005 Consideration for contract financing.
(a) Requirement. When a contract financing clause is included at the inception of a contract, there shall be no separate consideration for the contract financing clause. The value of the contract financing to the contractor is expected to be reflected in either (1)a bid or negotiated price that will be lower than such price would have been in the absence of the contract financing, or (2) contract terms and conditions, other than price, that are more beneficial to the Government than they would have been in the absence of the contract financing. Adequate new consideration is required for changes to, or the addition of, contract financing after award.
(b) Amount of new consideration. The contractor may provide new consideration by monetary or nonmonetary means, provided the value is adequate. The fair and reasonable consideration should approximate the amount by which the price would have been less had the contract financing terms been contained in the initial contract. In the absence of definite information on this point, the contracting officer should apply the following criteria in evaluating whether the proposed new consideration is adequate:
(1) The value to the contractor of the anticipated amount and duration of the contract financing at the imputed financial costs of the equivalent working capital.
(2) The estimated profit rate to be earned through contract performance.
(c) Interest. Except as provided in subpart 32.4, Advance Payments for Other Than Commercial Acquisitions, the contract shall not provide for any other type of specific charges, such as interest, for contract financing.
32.006 Reduction or suspension of contract payments upon finding of fraud.
(a) Under 10 U.S.C. 2307(i)(8), the statutory authority implemented by this section is available to the Department of Defense and the National Aeronautics and Space Administration; this statutory authority is not available to the United States Coast Guard. Under 41 U.S.C. 4506, this statutory authority is available to all agencies subject to Division C of subtitle I of title 41.
(b) 10 U.S.C.2307(i)(2) and 41 U.S.C. 4506 provide for a reduction or suspension of further payments to a contractor when the agency head determines there is substantial evidence that the contractor's request for advance, partial, or progress payments is based on fraud. This authority does not apply to commercial interim payments under subpart 32.2, or performance-based payments under subpart 32.10.
(c) The agency head may not delegate his or her responsibilities under these statutes below Level IV of the Executive Schedule.
(d) Authority to reduce or suspend payments under these statutes is in addition to other Government rights, remedies, and procedures.
(e) In accordance with these statutes, agency head determinations and decisions under this section may be made for an individual contract or any group of contracts affected by the fraud.
Remedy coordination official, as used in this section, means the person or entity in the agency who coordinates within that agency the administration of criminal, civil, administrative, and contractual remedies resulting from investigations of fraud or corruption related to procurement activities. (See 10 U.S.C.2307(i)(10) and 41 U.S.C.4506(a).)
(a) Agencies shall establish appropriate procedures to implement the policies and procedures of this section.
(b) Government personnel shall report suspected fraud related to advance, partial, or progress payments in accordance with agency regulations.
(a) In any case in which an agency’s remedy coordination official finds substantial evidence that a contractor’s request for advance, partial, or progress payments under a contract awarded by that agency is based on fraud, the remedy coordination official shall recommend that the agency head reduce or suspend further payments to the contractor. The remedy coordination official shall submit to the agency head a written report setting forth the remedy coordination official’s findings that support each recommendation.
(b) Upon receiving a recommendation from the remedy coordination official under paragraph (a) of this subsection, the agency head shall determine whether substantial evidence exists that the request for payment under a contract is based on fraud.
(c) If the agency head determines that substantial evidence exists, the agency head may reduce or suspend further payments to the contractor under the affected contract(s). Such reduction or suspension shall be reasonably commensurate with the anticipated loss to the Government resulting from the fraud.
(d) In determining whether to reduce or suspend further payment(s), as a minimum, the agency head shall consider-
(1) A recommendation from investigating officers that disclosure of the allegations of fraud to the contractor may compromise an ongoing investigation;
(2) The anticipated loss to the Government as a result of the fraud;
(3) The contractor’s overall financial condition and ability to continue performance if payments are reduced or suspended;
(4) The contractor’s essentiality to the national defense, or to the execution of the agency’s official business; and
(5) Assessment of all documentation concerning the alleged fraud, including documentation submitted by the contractor in its response to the notice required by paragraph (e) of this subsection.
(e) Before making a decision to reduce or suspend further payments, the agency head shall, in accordance with agency procedures-
(1) Notify the contractor in writing of the action proposed by the remedy coordination official and the reasons therefor (such notice must be sufficiently specific to permit the contractor to collect and present evidence addressing the aforesaid reasons); and
(2) Provide the contractor an opportunity to submit information within a reasonable time, in response to the action proposed by the remedy coordination official.
(f) When more than one agency has contracts affected by the fraud, the agencies shall consider designating one agency as the lead agency for making the determination and decision.
(g) The agency shall retain in its files the written justification for each-
(1) Decision of the agency head whether to reduce or suspend further payments; and
(2) Recommendation received by an agency head in connection with such decision.
(h) Not later than 180 calendar days after the date of the reduction or suspension action, the remedy coordination official shall-
(1) Review the agency head’s determination on which the reduction or suspension decision is based; and
(2) Transmit a recommendation to the agency head as to whether the reduction or suspension should continue.
(a) In accordance with 41 U.S.C.4506(h), the head of an agency, other than the Department of Defense, shall prepare a report for each fiscal year in which a recommendation has been received pursuant to 32.006-4(a). Reports within the Department of Defense shall be prepared in accordance with 10 U.S.C.2307(i)(7).
(1) Each recommendation made by the remedy coordination official;
(2) The actions taken on the recommendation(s), with reasons for such actions; and
(3) An assessment of the effects of each action on the Government.
32.007 Contract financing payments.
(1) Unless otherwise prescribed in agency policies and procedures or otherwise specified in paragraph (b) of this section, the due date for making contract financing payments by the designated payment office is the 30 thday after the designated billing office receives a proper contract financing request.
(2) If an audit or other review of a specific financing request is required to ensure compliance with the terms and conditions of the contract, the designated payment office is not compelled to make payment by the specified due date.
(3) Agency heads may prescribe shorter periods for payment based on contract pricing or administrative considerations. For example, a shorter period may be justified by an agency if the nature and extent of contract financing arrangements are integrated with agency contract pricing policies.
(4) Agency heads must not prescribe a period shorter than 7 days or longer than 30 days.
(b) For advance payments, loans, or other arrangements that do not involve recurrent submission of contract financing requests, the designated payment office will make payment in accordance with the applicable contract financing terms or as directed by the contracting officer.
(c) A proper contract financing request must comply with the terms and conditions specified by the contract. The contractor must correct any defects in requests submitted in the manner specified in the contract or as directed by the contracting officer.
(d) The designated billing office and designated payment office must annotate each contract financing request with the date their respective offices received the request.
(e) The Government will not pay an interest penalty to the contractor as a result of delayed contract financing payments.
32.008 Notification of overpayment.
If the contractor notifies the contracting officer of a duplicate payment or that the Government has otherwise overpaid, the contracting officer shall follow the procedures at 32.604.
32.009 Providing accelerated payments to small business subcontractors.
Pursuant to the policy provided by OMB Memorandum M-12-16, Providing Prompt Payment to Small Business Subcontractors (and as extended by OMB Memorandum M-13-15 and M-14-10, both titled, Extension of Policy to Provide Accelerated Payment to Small Business Subcontractors), agencies shall take measures to ensure that prime contractors pay small business subcontractors on an accelerated timetable to the maximum extent practicable, and upon receipt of accelerated payments from the Government. This acceleration does not provide any new rights under the Prompt Payment Act and does not affect the application of the Prompt Payment Act late payment interest provisions.
32.009-2 Contract clause.
Insert clause 52.232-40, Providing Accelerated Payments to Small Business Subcontractors, in all solicitations and contracts.
Part 33 Protests, Disputes, and Appeals
33.000 Scope of part.
This part prescribes policies and procedures for filing protests and for processing contract disputes and appeals.
There are other Federal court-related protest authorities and dispute-appeal authorities that are not covered by this part of the FAR, e.g., 28 U.S.C. 1491 for Court of Federal Claims jurisdiction. Contracting officers should contact their designated legal advisor for additional information whenever they become aware of any litigation related to their contracts.