Rule2022-04287
General Services Administration Acquisition Regulation (GSAR); Order Level Material Clarifications
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 2, 2022
Effective
April 1, 2022
Issuing agencies
General Services Administration
Abstract
The General Services Administration (GSA) is issuing a final rule amending the General Services Administration Acquisition Regulation (GSAR) to remove unnecessary language regarding approvals and travel and to correct citation and acronym references relating to order level materials.
Full Text
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<title>Federal Register, Volume 87 Issue 41 (Wednesday, March 2, 2022)</title>
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[Federal Register Volume 87, Number 41 (Wednesday, March 2, 2022)]
[Rules and Regulations]
[Pages 11589-11590]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-04287]
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GENERAL SERVICES ADMINISTRATION
48 CFR Parts 538 and 552
[GSAR Case 2020-G537; Docket No. 2022-0008; Sequence No. 1]
RIN 3090-AK32
General Services Administration Acquisition Regulation (GSAR);
Order Level Material Clarifications
AGENCY: Office of Acquisition Policy, General Services Administration
(GSA).
ACTION: Final rule.
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SUMMARY: The General Services Administration (GSA) is issuing a final
rule amending the General Services Administration Acquisition
Regulation (GSAR) to remove unnecessary language regarding approvals
and travel and to correct citation and acronym references relating to
order level materials.
DATES: Effective: April 1, 2022.
FOR FURTHER INFORMATION CONTACT: Ms. Megan Huppee or Mr. Bryon Boyer,
GSA Acquisition Policy Division, for clarification of content at
<a href="/cdn-cgi/l/email-protection#bddacedccfcdd2d1d4dec4fddacedc93dad2cb"><span class="__cf_email__" data-cfemail="f79084968587989b9e948eb7908496d9909881">[email protected]</span></a>. For information pertaining to status or publication
schedules, contact the Regulatory Secretariat at 202-501-4755. Please
cite GSAR Case 2020-G537.
SUPPLEMENTARY INFORMATION:
I. Background
Order Level Materials (OLMs) are supplies and/or services acquired
in direct support of an individual task or delivery order placed
against a Federal Supply Schedule (FSS) contract or FSS blanket
purchase agreement (BPA), when the supplies and/or services are not
known at the time of FSS contract or FSS BPA award. OLMs must be
acquired following the procedures in GSAR subpart 538.72. OLMs are
currently approved for 59 subcategories under FSS contracts, see
<a href="https://www.gsa.gov/olm">https://www.gsa.gov/olm</a>. The GSAR currently requires the Senior
Procurement Executive's (SPE) authorization for further use of OLMs
under FSS. GSA is removing this requirement from the GSAR to provide
revised internal operating guidance in the non-regulatory GSA
Acquisition Manual (GSAM).
GSA is removing references from the OLM clause at 552.238-115 to
the Federal Travel Regulation (FTR) because those references
unnecessarily conflate travel as being an order level material and
complicate the procedures for ordering activities and contracting
officers.
GSA is also updating the GSAR to accurately reflect terminology,
acronyms, citations, and references in conformance with the new
consolidated FSS schedule procedures (more information available at:
<a href="https://www.gsa.gov/schedule">https://www.gsa.gov/schedule</a>).
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
After an internal review of existing policy, GSA is removing the
requirement for GSA SPE authorization for use of OLMs on FSS, because
it is unnecessary and administratively burdensome to the agency.
Revised operating guidance which will provide for a lower level of
approval, will now be provided in the non-regulatory GSAM, because
these are internal procedures only, and as a result references to
changes to OLM procedures are removed from the GSAR.
GSAR clause 552.238-115, Special Ordering Procedures for the
Acquisition of Order-Level Materials prescribes procedures for
including OLMs when placing an order against an FSS contract or FSS BPA
and references travel. The reference to travel in the clause, implying
that it is an OLM, has caused confusion for contracting officers. To
simplify acquisition procedures, this final rule removes travel from
the OLM clause to allow ordering activities and contractors to include
travel at the order level in accordance with Federal Acquisition
Regulations Part 31 and may also include requirements from the FTR.
IV. Executive Order 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 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
OIRA has determined that this rule is not a major rule under 5
U.S.C. 804(2). Subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996 (codified at 5 U.S.C. 801-808), also known as the
Congressional Review Act or CRA, 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.
The General Services Administration will submit a report containing
this rule and other required information to the U.S. Senate, the U.S.
House of Representatives, and the Comptroller General of the United
States. A major rule under the CRA cannot take effect until 60 days
after it is published in the Federal Register.
VI. Notice for Public Comment
The statute that applies to the publication of the GSAR is the
Office of Federal Procurement Policy statute (codified at title 41 of
the United States Code). Specifically, 41 U.S.C. 1707(a)(1) requires
that a procurement policy, regulation, procedure or form (including an
amendment or modification thereof) must be published for public comment
if it relates to the expenditure of appropriated funds, and has either
a significant effect beyond the internal operating procedures of the
agency issuing the policy, regulation, procedure, or form, or has a
significant cost or administrative impact on contractors or offerors.
This rule is not required to be published for public comment, because
it does not have a significant effect or impose any new requirements on
contractors or offers, the rule merely corrects citation
[[Page 11590]]
references, removes confusing references for travel, and removes
inconsistent language for authorizations for OLMs.
VII. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) does not
apply to this rule, because an opportunity for public comment is not
required to be given for this rule under 41 U.S.C. 1707(a)(1) (see
Section VI. of this preamble). Accordingly, no regulatory flexibility
analysis is required and none has been prepared.
VIII. Paperwork Reduction Act
The final 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. chapter 35).
List of Subjects in 48 CFR Parts 538 and 552
Government procurement.
Jeffrey A. Koses,
Senior Procurement Executive, Office of Acquisition Policy, Office of
Government-wide Policy, General Services Administration.
Therefore, GSA amends 48 CFR parts 538 and 552 as set forth below:
0
1. The authority citation for 48 CFR parts 538 and 552 continues to
read as follows:
Authority: 40 U.S.C. 121(c).
PART 538--FEDERAL SUPPLY SCHEDULE CONTRACTING
538.7201 [Removed and Reserved]
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2. Remove and reserve section 538.7201.
PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
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3. Amend section 552.238-115 by--
0
a. Revising the date of the clause;
0
b. In paragraph (a), in the definition of ``Order-level materials'' by
removing the words ``materials means'' and adding ``materials, as used
in this clause'' and in the third sentence removing the phrase ``this
section'' and adding the phrase ``this clause'' in its place;
0
c. Revising paragraph (d)(2);
0
d. Removing from paragraph (d)(4) the phrase ``FSS contract'', and
adding the phrase ``FSS Contract,'' in its place.
0
e. Removing from paragraph (d)(6) the phrase ``follow procedures'' and
adding the phrase ``follow the procedures'' in its place;
0
f. Removing from paragraph (d)(7)(i) introductory text the word
``contractor'' and adding the word ``Contractor'' in its place;
0
g. Removing from paragraph (d)(7)(i)(A) the phrase ``contractor under
FAR 52.212-4 Alt I (i)(1)(ii)(A)'' and adding the phrase ``Contractor
under paragraph (i)(1)(ii)(A) of FAR clause 52.212-4 Alternate I'' in
its place;
0
h. Removing from paragraph (d)(7)(i)(B) the word ``contractor'' and
adding the word ``Contractor'' in its place wherever it appears, and
removing the word ``its'';
0
i. Revising paragraph (d)(7)(i)(C);
0
j. Removing from paragraph (d)(7)(iii) the phrase ``FAR 52.212-
4(i)(1)(ii)(D)(2) Alternate I'' and adding the phrase ``paragraph
(i)(1)(ii)(D)(2) of FAR clause 52.212-4 Alternate I'' in its place;
0
k. Removing from paragraph (d)(9) the phrases ``by GSA'' and
``compliance with the IFF'' and adding the phrases ``by GSA (Federal
Supply Schedules)'' and ``compliance with the Industrial Funding Fee
(IFF)'' in their places respectively;
0
l. Removing from paragraph (d)(10) introductory text the phrase
``OLMs'' and adding the phrase ``Order-level materials'' in its place;
0
m. Removing from paragraph (d)(10)(ii) the phrase ``FSS Schedule
Pricelists'' and adding ``Federal Supply Schedule (FSS) Price Lists''
in its place; and
0
n. Removing paragraph (d)(11).
The revisions read as follows:
552.238-115 Special Ordering Procedures for the Acquisition of Order-
Level Materials
* * * * *
Special Ordering Procedures for the Acquisition of Order-Level
Materials (Apr 2022)
* * * * *
(d) * * *
(2) Order-level materials are included in the definition of the
term ``material'' in FAR clause 52.212-4 Alternate I, and,
therefore, all provisions of FAR clause 52.212-4 Alternate I that
apply to ``materials'' also apply to order-level materials.
* * * * *
(7) * * *
(i) * * *
(C) A Contractor with an approved purchasing system, per FAR
subpart 44.3, shall instead follow its purchasing system requirement
and is exempt from the requirements in paragraphs (d)(7)(i)(A) and
(B) of this clause.
* * * * *
[FR Doc. 2022-04287 Filed 3-1-22; 8:45 am]
BILLING CODE 6820-61-P
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