[Federal Register Volume 61, Number 120 (Thursday, June 20, 1996)]
[Rules and Regulations]
[Pages 31651-31655]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14532]
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DEPARTMENT OF DEFENSE
48 CFR Parts 28 and 52
[FAC 90-39, FAR Case 95-301, Item XVII]
RIN 9000-AG99
Federal Acquisition Regulation; Irrevocable Letters of Credit and
Alternatives to Miller Act Bonds
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule with request for comment.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed to an interim rule to amend
the Federal Acquisition Regulation (FAR) to implement OFPP Policy
Letter 91-4 (previously considered under FAR case 91-113, Irrevocable
Letters of Credit) and provide alternatives to Miller Act Bonds, as
required by Section 4104(b) of the Federal Acquisition Streamlining Act
of 1994 (FASA) (Pub. L. 103-355). This regulatory action was not
subject to Office of Management and Budget review under Executive Order
12866, dated September 30, 1993, and is not a major rule under 5 U.S.C.
804.
DATES: Effective Date: June 20,1996.
Comment Date: Comments should be submitted to the FAR Secretariat
at the address shown below on or before August 19, 1996 to be
considered in the formulation of a final rule.
ADDRESSES: Interested parties should submit written comments to:
General Services Administration, FAR Secretariat (MVRS), 18th & F
Streets, NW, Room 4035, Attn: Ms. Beverly Fayson, Washington, DC 20405.
Please cite FAC 90-39, FAR case 95-301 in all correspondence
related to this case.
FOR FURTHER INFORMATION CONTACT: Jack O'Neill at (202) 501-3856 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-39, FAR case 95-301.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule amends FAR Parts 28 and 52 to provide for use of
Irrevocable Letters of Credit as an alternative to corporate or
individual sureties as security for Miller Act bonds, and provides
alternatives to Miller Act bonds for construction contracts valued at
$25,000 to $100,000, which are no longer subject to the Miller Act, in
accordance with Section 4104(b)(1) of FASA.
B. Regulatory Flexibility Act
The interim rule may 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
provides alternatives to Miller Act bonds for construction contracts
valued at $25,000 to $100,000. In addition, it offers Irrevocable
Letters of Credit as an alternative to surety on Miller Act bonds for
construction contracts over $100,000. These alternatives may be helpful
to both large and small construction contractors. An Initial Regulatory
Flexibility Analysis (IRFA) has been prepared and will be provided to
the Chief Counsel for Advocacy for the Small Business Administration. A
copy of the IRFA may be obtained from the FAR Secretariat. Comments are
invited. Comments from small entities concerning the affected FAR
subpart will be considered in accordance with 5 U.S.C. 610. Such
comments must be submitted separately and cite 5 U.S.C 601, et seq.
(FAR Case 95-301), 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 OMB under 44
U.S.C. 3501, et seq.
D. Determination to Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DOD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that compelling reasons exist to promulgate this interim rule
without prior opportunity for public comment. This action is necessary
because Section 4104(b) of the Federal Acquisition Streamlining Act of
1994 (Public Law 103-355), regarding Irrevocable Letters of Credit and
alternatives to Miller Act Bonds, requires immediate implementation.
However, pursuant to Public Law 98-577 and FAR 1.501, public comments
received in response to this interim rule will be considered in the
formation of the final rule.
List of Subjects in 48 CFR Parts 28 and 52
Government procurement.
[[Page 31652]]
Dated: June 4, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR parts 28 and 52 are amended as set forth below:
1. The authority citation for 48 CFR parts 28 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 28--BONDS AND INSURANCE
2. Section 28.001 is amended in the definition of ``Bond'' by
revising the first sentence; and adding, in alphabetical order, the
definition ``Irrevocable letter of credit'' to read as follows:
28.001 Definitions.
* * * * *
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. * * *
* * * * *
Irrevocable letter of credit (ILC) means a written commitment by a
federally insured financial institution to pay all or part of a stated
amount of money on demand to the Government (the beneficiary) until the
expiration date of the letter. The letter of credit cannot be revoked
or conditioned.
* * * * *
28.102 Performance and payment bonds and alternative payment
protections for construction contracts.
3. The heading at section 28.102 is revised as set forth above.
4. Section 28.102-1 is amended in paragraph (a) introductory text
by revising ``$25,000'' to read ``$100,000''; redesignating paragraph
(b) as (c) and adding after the word ``bonds'' the phrase ``or
alternative payment protection''; and adding (b)(1) and (b)(2). The
revised text reads as follows:
28.102-1 General.
* * * * *
(b)(1) Pursuant to Section 4104(b)(2) of the Federal Acquisition
Streamlining Act of 1994 (Public Law 103-355), for construction
contracts greater than $25,000, but not greater than $100,000, the
contracting officer shall select two or more of the following payment
protections, giving particular consideration to inclusion of an
irrevocable letter of credit as one of the selected alternatives:
(i) A payment bond.
(ii) An irrevocable letter of credit (ILC).
(iii) A tripartite escrow agreement. The prime contractor
establishes an escrow account in a federally insured financial
institution and enters into a tripartite escrow agreement with the
financial institution, as escrow agent, and all of the suppliers of
labor and material. The escrow agreement shall establish the terms of
payment under the contract and of resolution of disputes among the
parties. The Government makes payments to the contractor's escrow
account, and the escrow agent distributes the payments in accordance
with the agreement, or triggers the disputes resolution procedures if
required.
(iv) Certificates of deposit. The contractor deposits certificates
of deposit from a federally insured financial institution with the
contracting officer, in an acceptable form, executable by the
contracting officer.
(v) A deposit of the types of security listed in 28.204-1 and
28.204-2.
(2) The contractor shall submit to the Government one of the
payment protections selected by the contracting officer.
* * * * *
5. Section 28.102-2 is amended by--
(a) Revising the heading of paragraph (b) and (b)(1) introductory
text;
(b) In the last sentence of paragraph (b)(2) by removing
``subparagraph (1) immediately above'' and inserting ``paragraph (b)(1)
of this subsection'' in its place;
(c) At the end of paragraph (b)(3) by removing the period and
inserting ``, or to furnish additional alternative payment
protection.'' in its place;
(d) In paragraph (c)(1) and the first sentence of (c)(2) by
inserting after the word ``bonds'' the phrase ``or alternative payment
protection'';
(e) In the second sentence of paragraph (c)(2) by removing the word
``above'' and inserting ``of this subsection'' in its place;
(f) Adding paragraph (d). The revised text reads as follows:
28.102-2 Amount required.
* * * * *
(b) Payment bonds or alternative payment protection. (1) The penal
amount of payment bonds or alternative payment protection shall equal--
* * * * *
(d) Reducing amounts. The contracting officer has the discretion to
reduce the amount of security to support a bond, subject to the
conditions of 28.203-5(c) or 28.204(b).
6. Section 28.102-3 is amended by revising the section heading;
redesignating paragraphs (a), (b) and (c) as (a)(1), (a)(2) and (a)(3),
respectively; redesignating the undesignated introductory paragraph as
paragraph (a); and adding paragraph (b) to read as follows:
28.102-3 Solicitation requirements and contract clause.
* * * * *
(b) Insert the clause at 52.228-13, Alternative Payment
Protections, in solicitations and contracts for construction, when the
estimated or actual value exceeds $25,000 but does not exceed $100,000.
Complete the clause by specifying the payment protection or protections
selected (see 28.102-1(b)(1)), the penal amount required, and the
deadline for submission.
7. Section 28.106-3 is amended by revising the section heading and
adding paragraph (c) to read as follows:
28.106-3 Additional bond or security.
* * * * *
(c) When an ILC is used as an alternative to corporate or
individual sureties as security for a performance or payment bond and
the contract performance period is extended, the contracting officer
shall require the contractor to provide an ILC with an appropriately
extended maturity that meets the requirements of 28.204-3(f).
8. Section 28.106-5 is amended by redesignating paragraph (b) as
(c); and adding a new paragraph (b) to read as follows:
Sec. 28.106-5 Consent of surety.
* * * * *
(b) When a contract for which performance or payment is secured by
any of the types of security listed in 28.204 is modified as described
in paragraph (a) of this subsection, no consent of surety is required.
* * * * *
9. Section 28.106-8 is added to read as follows:
28.106-8 Payment to subcontractors or suppliers.
The contracting officer will only authorize payment from an ILC (or
any other cash equivalent security) upon a judicial determination of
the rights of the parties, a signed notarized statement by the
contractor that the payment is due and owed, or a signed agreement
between the parties as to amount due and owed.
10. Section 28.203-5 is amended by redesignating paragraph (a)(2)
as (a)(3) and revising the heading; adding a new
[[Page 31653]]
paragraph (a)(2); and in the second sentence of paragraph (c) by
removing ``and (2)'' and inserting in its place ``through (3)''. The
revised text reads as follows:
28.203-5 Release of lien.
* * * * *
(a) * * *
(2) Contracts subject to alternative payment protection (28.102-
1(b)(1)). The security interest shall be maintained for the full
contract performance period plus one year.
(3) Other contracts not subject to the Miller Act. * * *
* * * * *
11. Section 28.204 is revised to read as follows:
28.204 Alternatives in lieu of corporate or individual sureties.
(a) Any person required to furnish a bond to the Government may
furnish any of the types of security listed in 28.204-1 through 28.204-
3 instead of a corporate or individual surety for the bond. When any of
those types of security are deposited, a statement shall be
incorporated in the bond form pledging the security. The contractor
shall execute the bond forms as the principal. Agencies shall establish
safeguards to protect against loss of the security and shall return the
security or its equivalent to the contractor when the bond obligation
has ceased.
(b) Upon written request by any contractor securing a performance
or payment bond by any of the types of security listed in 28.204-1
through 28.204-3, the contracting officer may release a portion of the
security only when the conditions allowing the partial release of lien
in 28.203-5(c) are met. The contractor shall, as a condition of the
partial release, furnish an affidavit agreeing that the release of such
security does not relieve the contractor of its obligations under the
bond(s).
(c) The contractor may satisfy a requirement for bond security by
furnishing a combination of the types of security listed in 28.204-1
through 28.204-3 or a combination of bonds supported by these types of
security and additional surety bonds under 28.202 or 28.203. During the
period for which a bond supported by security is required, the
contractor may substitute one type of security listed in 28.204-1
through 28.204-3 for another, or may substitute, in whole or
combination, additional surety bonds under 28.202 or 28.203.
12. Sections 28.204-3 and 28.204-4 are added to read as follows:
28.204-3 Irrevocable letter of credit (ILC).
(a) Any person required to furnish a bond has the option to furnish
a bond secured by an ILC in an amount equal to the penal sum required
to be secured (see 28.204). A separate ILC is required for each bond.
(b) The ILC shall be irrevocable, unconditional, expire only as
provided in paragraph (f) of this subsection, and be issued by an
acceptable federally insured financial institution as provided in
paragraph (g) of this subsection. ILCs over $5 million must be
confirmed by another acceptable financial institution that had letter
of credit business of at least $25 million in the past year.
(c) To draw on the ILC, the contracting officer shall use the sight
draft set forth in the clause at 52.228-14 and present it with the ILC
to the issuing financial institution or the confirming financial
institution (if any).
(d) If the contractor does not furnish an acceptable replacement
ILC, or other acceptable substitute, at least 30 days before an ILC's
scheduled expiration, the contracting officer shall immediately draw on
the ILC.
(e) If, after the period of performance of a contract where ILCs
are used to support payment bonds, there are outstanding claims against
the payment bond, the contracting officer shall draw on the ILC prior
to the expiration date of the ILC to cover these claims.
(f) Expiration dates shall be established as follows:
(1) If used as a bid guarantee, the ILC should expire no earlier
than 60 days after the close of the bid acceptance period.
(2) If used as an alternative to corporate or individual sureties
as security for a performance or payment bond, the offeror/contractor
may submit an ILC to cover the entire period of performance or an ILC
with an initial expiration date which is a minimum period of one year
from the date of issuance, with a provision which states that the ILC
is automatically extended without amendment for one year from the
expiration date, or any future expiration date, until the period of
performance is completed. The final expiration date shall be:
(i) For contracts subject to the Miller Act, the later of--
(A) One year following the expected date of final payment;
(B) For performance bonds only, until completion of any warranty
period; or
(C) For payment bonds only, until resolution of all claims filed
against the payment bond during the one-year period following final
payment.
(ii) For contracts not subject to the Miller Act, the later of--
(A) 90 days following final payment; or
(B) Until completion of any warranty period for performance bonds
only.
(g) The ILC shall be issued or confirmed by a federally insured
financial institution rated investment grade or higher.
(1) The offeror/contractor shall provide the contracting officer a
credit rating that indicates the financial institution has the required
rating(s) as of the date of issuance of the ILC.
(2) If the contracting officer learns that a financial
institution's rating has dropped below the required level, the
contracting officer shall give the contractor 30 days to substitute an
acceptable ILC or shall draw on the ILC using the sight draft in
paragraph (g) of the clause at 52.228-14.
(h) Additional information on credit rating services and investment
grade ratings, and a copy of the Uniform Customs and Practice (UCP) for
Documentary Credits, 1983 Revision, International Chamber of Commerce
Publication No. 400, is contained within the Office of Federal
Procurement Policy Pamphlet No. 7, Use of Irrevocable Letters of
Credit. This pamphlet may be obtained by calling the Office of
Management and Budget's publications office at (202) 395-7332.
28.204-4 Contract clause.
Insert the clause at 52.228-14, Irrevocable Letter of Credit, in
solicitations and contracts for services, supplies, or construction,
when a bid guarantee, or performance bonds, or performance and payment
bonds are required.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
13. Section 52.228-2 is amended by revising the introductory text,
the date in the clause heading, and paragraph (a) of the clause; in
paragraph (b) by removing ``or''; at the end of paragraph (c) by
removing the period and replacing it with ``; or''; and adding
paragraph (d) to read as follows:
52.228-2 Additional Bond Security.
As prescribed in 28.106-4, insert the following clause:
ADDITIONAL BOND SECURITY (JUN 1996)
* * * * *
(a) Any surety upon any bond, or issuing financial institution
for other security, furnished with this contract becomes
unacceptable to the Government;
* * * * *
(d) The contract performance period is extended and an
irrevocable letter of credit (ILC) is used as security. If the
Contractor
[[Page 31654]]
does not furnish an acceptable extension or replacement ILC, or
other acceptable substitute, at least 30 days before an ILC's
scheduled expiration, the Contracting Officer has the right to
immediately draw on the ILC.
(End of clause)
14. Sections 52.228-13 and 52.228-14 are added to read as follows:
52.228-13 Alternative Payment Protections.
As prescribed in 28.102-3(b), insert the following clause:
ALTERNATIVE PAYMENT PROTECTIONS (JUN 1996)
(a) The Contractor shall submit one of the following payment
protections:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
(b) The penal sum of the payment protection shall be in the
amount of $ __________.
(c) The submission of the payment protection is required by
____________________.
(d) The payment protection shall provide protection for the full
contract performance period plus a one-year period.
(e) Except for escrow agreements and payment bonds, which
provide their own protection procedures, the Contracting Officer is
authorized to access funds under the payment protection when it has
been alleged in writing by a supplier of labor or material that a
nonpayment has occurred, and to withhold such funds pending
resolution by administrative or judicial proceedings or mutual
agreement of the parties.
(f) When a tripartite escrow agreement is used, the Contractor
shall utilize only suppliers of labor and material who signed the
escrow agreement.
(End of clause)
52.228-14 Irrevocable Letter of Credit.
As prescribed in 28.204-4, insert the following clause:
IRREVOCABLE LETTER OF CREDIT (JUN 1996)
(a) Irrevocable letter of credit (ILC), as used in this clause,
means a written commitment by a federally insured financial
institution to pay a stated amount of money on demand to the
Government (the beneficiary), until the expiration date of the
letter. Neither the financial institution nor the offeror/Contractor
can revoke or condition the letter of credit.
(b) If the offeror intends to use an ILC in lieu of a bid bond,
or to support other types of bonds such as performance and payment
bonds, the letter of credit and letter of confirmation formats in
paragraphs (e) and (f) of this clause shall be used.
(c) The letter of credit shall be irrevocable, unconditional,
issued by an acceptable federally insured financial institution as
provided in paragraph (d) of this clause, and--
(1) If used as a bid guarantee, the ILC shall expire no earlier
than 60 days after the close of the bid acceptance period;
(2) If used to secure a performance or payment bond, the
offeror/Contractor may submit an ILC to cover the entire period of
performance or may submit an ILC with an initial expiration date
which is a minimum period of one year from the date of issuance,
with a provision which states that the ILC is automatically extended
without amendment for one year from the expiration date, or any
future expiration date, until the period of performance is
completed. The final expiration date shall be:
(i) For contracts subject to the Miller Act, the later of--
(A) One year following the expected date of final payment;
(B) For performance bonds only, until completion of any warranty
period; or
(C) For payment bonds only, until resolution of all claims filed
against the payment bond during the one-year period following final
payment.
(ii) For contracts not subject to the Miller Act, the later of--
(A) 90 days following final payment; or
(B) Until completion of any warranty period for performance
bonds only.
(d) The ILC shall be issued or confirmed by a federally insured
financial institution rated investment grade or higher. The offeror/
Contractor shall provide the Contracting Officer a credit rating
that indicates the financial institution has the required rating(s)
as of the date of issuance of the ILC. ILCs over $5 million must be
confirmed by another acceptable financial institution that had
letter of credit business of at least $25 million in the past year.
(e) The following format shall be used by the issuing financial
institution to create an ILC:
----------------------------------------------------------------------
[Issuing Financial Institution's Letterhead or Name and Address]
Issue Date-------------------------------------------------------------
Irrevocable Letter of Credit No.---------------------------------------
Account party's name---------------------------------------------------
Account party's address------------------------------------------------
For Solicitation No.---------------------------------------------------
(For reference only)
TO: [U.S. Government agency]
[U.S. Government agency's address]
1. We hereby establish this irrevocable, unconditional, and
transferable Letter of Credit in your favor for one or more drawings
up to United States $__________. This Letter of Credit is payable at
[issuing financial institution's and, if any, confirming financial
institution's] office at [issuing financial institution's address
and, if any, confirming financial institution's address] and expires
with our close of business on __________, or any automatically
extended expiration date.
2. We hereby undertake to honor your or transferee's sight
draft(s) drawn on issuing and, if any, confirming financial
institution, for all or any part of this credit that is presented at
the office specified in paragraph 1 of this Letter of Credit on or
before the expiration date or any automatically extended expiration
date.
3. [This paragraph is omitted if used as a bid guarantee, and
subsequent paragraphs are renumbered.] It is a condition of this
Letter of Credit that it is deemed to be automatically extended
without amendment for one year from the expiration date hereof, or
any future expiration date, unless at least 60 days prior to any
expiration date, we notify you or the transferee by registered mail,
or other receipted means of delivery, that we elect not to consider
this Letter of Credit renewed for any such additional period. At the
time we notify you, we also agree to notify the account party (and
confirming financial institution, if any) by the same means of
delivery.
4. This Letter of Credit is transferable. Transfers and
assignments of proceeds are to be effected without charge to either
the beneficiary or the transferee/assignee of proceeds.
5. This Letter of Credit is subject to the Uniform Customs and
Practice (UCP) for Documentary Credits, 1983 Revision, International
Chamber of Commerce Publication No. 400, and to the extent not
inconsistent therewith, to the laws of ____________ [state of
confirming financial institution, if any, otherwise state of issuing
financial institution].
6. If this credit expires during an interruption of business of
this financial institution as described in Article 19 of the UCP,
the financial institution specifically agrees to effect payment if
this credit is drawn against within 30 calendar days after the
resumption of our business.
Sincerely,
[Issuing financial institution]
(f) The following format shall be used by the financial
institution to confirm an ILC:
[Confirming Financial Institution's Letterhead or Name and Address]---
____________________, 19______
Our Letter of Credit
Advice Number----------------------------------------------------------
Beneficiary:-----------------------------------------------------------
[U.S. Government agency]
Issuing Financial Institution:-----------------------------------------
Issuing Financial Institution's LC No.:--------------------------------
Gentlemen:
1. We hereby confirm the above indicated Letter of Credit, the
original of which is attached, issued by __________ [name of issuing
financial institution] for drawings of up to United States dollars
__________/U.S. $__________ and expiring with our close of business
on __________ [the expiration date], or any automatically extended
expiration date.
2. Draft(s) drawn under the Letter of Credit and this
Confirmation are payable at our office located at ____________.
3. We hereby undertake to honor sight draft(s) drawn under the
Letter of Credit and this Confirmation if presented at our offices
as specified herein.
4. [This paragraph is omitted if used as a bid guarantee, and
subsequent paragraphs are renumbered.] It is a condition of this
confirmation that it be deemed automatically extended without
amendment for one year from the expiration date hereof, or any
automatically extended expiration date, unless:
(a) At least sixty (60) days prior to any such expiration date
we shall notify the
[[Page 31655]]
Contracting Officer, or the transferee and the issuing financial
institution, by registered mail or other receipted means of
delivery, that we elect not to consider this confirmation extended
for any such additional period; or
(b) The issuing financial institution shall have exercised its
right to notify you or the transferee, the account party, and
ourselves, of its election not to extend the expiration date of the
Letter of Credit.
5. This confirmation is subject to the Uniform Customs and
Practice (UCP) for Documentary Credits, 1983 Revision, International
Chamber of Commerce Publication No. 400, and to the extent not
inconsistent therewith, to the laws of __________ [state of
confirming financial institution].
6. If this confirmation expires during an interruption of
business of this financial institution as described in Article 19 of
the UCP, we specifically agree to effect payment if this credit is
drawn against within 30 calendar days after the resumption of our
business.
Sincerely,
----------------------------------------------------------------------
[Confirming financial institution]
(g) The following format shall be used by the Contracting
Officer for a sight draft to draw on the Letter of Credit:
SIGHT DRAFT
----------------------------------------------------------------------
[City, State]
____________________, 19______
[Name and address of financial institution]
Pay to the order of----------------------------------------------------
[Beneficiary Agency] __________
the sum of United States $ __________-------------------------
This draft is drawn under----------------------------------------------
Irrevocable Letter of Credit No.---------------------------------------
----------------------------------------------------------------------
[Beneficiary Agency]
By: ____________________
(End of clause)
[FR Doc. 96-14532 Filed 6-19-96; 8:45 am]
BILLING CODE 6820-EP-P