Effective immediately, all Department of Defense contracting activities supporting payments covered by 5 CFR 1315.1(b)(2), related to emergencies as defined in the Disaster Relief Act of 1974, Public Law 93–288, as amended (42 U.S.C. 5121 et seq.); military contingency operations (as defined in 10 U.S.C. 101 (a)(13)); and the release or threatened release of hazardous substances (as defined in 4 U.S.C. 9606, Section 106) may deviate from the requirements of FAR 32.9, Prompt Payment. This deviation, however, is applicable only when payments covered by 5 CFR 1315.1(b)(2) are either certified for payment in an operational area, or are contingent upon the receipt of necessary supporting documentation (i.e., contract, invoice, receiving report) emanating from an operational area.
It is clear that, during these types of emergencies and contingency operations, the operational area can be so fluid and dynamic that carrying out normal business practices can be extremely challenging. As such, the Head of the Contracting Activity (HCA) is granted the authority, after consultation with the cognizant Comptroller, to incorporate the payment provision at Attachment 1 into contracts, in lieu of the clauses prescribed in FAR 32.908, when an unstable business environment exists. Attachment 2 contains general guidelines the HCA should consider in making the determination.
This deviation will provide the Department needed flexibility in limited circumstances. The HCA shall make subsequent determinations as the operational area evolves into a more stable business environment to enable the provisions of the Prompt Payment Act to apply.
This class deviation is effective upon signature, and remains in effect until incorporated in the DFARS or until otherwise rescinded.