Proposed Rule2022-27106
General Services Administration Acquisition Regulation (GSAR); Streamline GSA Commercial Contract Clause Requirements
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Published
December 20, 2022
Issuing agencies
General Services Administration
Abstract
The General Services Administration (GSA) is proposing to amend the General Services Administration Acquisition Regulation (GSAR) to clarify and streamline the clauses contracting officers should reference in GSA acquisitions for commercial products and commercial services. The rulemaking proposes to update several clauses and other related parts by eliminating out of date references and any requirements that are not necessary by law.
Full Text
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<title>Federal Register, Volume 87 Issue 243 (Tuesday, December 20, 2022)</title>
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[Federal Register Volume 87, Number 243 (Tuesday, December 20, 2022)]
[Proposed Rules]
[Pages 77783-77786]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-27106]
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GENERAL SERVICES ADMINISTRATION
48 CFR Parts 515, 538 and 552
[GSAR Case 2019-G503; Docket No. 2022-0019; Sequence No. 1]
RIN 3090-AK09
General Services Administration Acquisition Regulation (GSAR);
Streamline GSA Commercial Contract Clause Requirements
AGENCY: Office of Acquisition Policy, General Services Administration.
ACTION: Proposed rule.
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SUMMARY: The General Services Administration (GSA) is proposing to
amend the General Services Administration Acquisition Regulation (GSAR)
to clarify and streamline the clauses contracting officers should
reference in GSA acquisitions for commercial products and commercial
services. The rulemaking proposes to update several clauses and other
related parts by eliminating out of date references and any
requirements that are not necessary by law.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat as noted below on or before February 21, 2023 to
be considered in the formation of the final rule.
ADDRESSES: Submit comments in response to GSAR Case 2019-G503 to:
<a href="http://Regulations.gov">Regulations.gov</a>: <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Submit comments via the
Federal eRulemaking portal by searching for ``GSAR Case 2019-G503''.
Select the link ``Comment Now'' that corresponds with GSAR Case 2019-
G503. Follow the instructions provided at the ``Comment Now'' screen.
Please include your name, company name (if any), and ``GSAR Case 2019-
G503'' on your attached document. If your comment cannot be submitted
using <a href="https://www.regulations.gov">https://www.regulations.gov</a>, 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 2019-
G503, in all correspondence related to this case. Comments received
generally will be posted without change to <a href="https://www.regulations.gov">https://www.regulations.gov</a>,
including any personal and/or business confidential information
provided. To confirm receipt of your comment(s), please check <a href="https://www.regulations.gov">https://www.regulations.gov</a>, approximately two-to-three days after submission
to verify posting.
FOR FURTHER INFORMATION CONTACT: Mr. Nicholas Giles, Procurement
Analyst, at <a href="/cdn-cgi/l/email-protection#064155475456696a6f657f4661756728616970"><span class="__cf_email__" data-cfemail="f4b3a7b5a6a49b989d978db4938795da939b82">[email protected]</span></a>, for clarification of content. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at 202-501-4755 or <a href="/cdn-cgi/l/email-protection#b9feeaf8ebdcdecadcdaf9decad897ded6cf"><span class="__cf_email__" data-cfemail="0d4a5e4c5f686a7e686e4d6a7e6c236a627b">[email protected]</span></a>. Please
cite GSAR Case 2019-G503.
SUPPLEMENTARY INFORMATION:
I. Background
As the largest consumer of commercial products and services, the
federal government must ensure its contracting officers include the
appropriate safeguards when procuring these products and services. As
part of GSA's regulatory review efforts, GSA identified several
duplicative and outdated clauses incorporated by reference at GSAR
552.212-71 Contract Terms and Conditions Applicable to GSA Acquisitions
of Commercial Products and Commercial Services, GSAR 552.212-72
Contract Terms and Conditions Required To Implement Statutes or
Executive Orders Applicable to GSA Acquisition of Commercial Products
and Commercial Services, and other related GSAR sections. This proposed
rule streamlines and reorganizes the references in GSAR Clauses
552.212-71 and 552.212-72, and other related GSAR sections for
contracting officers to consider inserting in solicitations and
contracts for procuring commercial products and services. As a result,
the deletion of some of the references within these clauses will reduce
the time contracting officers spend on reviewing for applicability for
commercial procurements.
GSA is amending the GSAR to reorganize 552.212-71 and 552.212-72 to
reduce duplication of content and to ensure consistency within GSA's
guidance as it relates to the acquisition of commercial products and
commercial services. In addition, GSA is amending the GSAR to
reorganize 515.408 and 538.273 to correct technical errors and clarify
clauses.
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
GSA's review of the GSAR clauses for procuring commercial products
and services resulted in the reorganization of GSAR clauses and
applicable parts including the removal, transferring and
[[Page 77784]]
renumbering of referenced clauses within GSAR 552.212-71, 552.212-72
and other applicable GSAR sections to ensure contracting officers
include the appropriate provisions and clauses in commercial contracts
and solicitations. These changes can be categorized into three areas:
(1) reorganization of commercial clauses and applicable parts; (2)
relocation of an FSS clause; and (3) editorial changes.
1. Reorganization of Commercial Clauses and Applicable Parts
The proposed changes to the GSAR will:
a. Remove references to five (5) obsolete clauses in 552.212-71
that were deleted in previous GSAR cases. Based on GSA's review of GSAR
552.212-71, this rule proposes to remove the references to the
following five (5) obsolete clauses:
(1) 552.228-70 Workers' Compensation Laws; \1\
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\1\ See 74 FR 17099, dated May 14, 2009, deleting GSAR clause
552.228-70.
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(2) 552.232-71 Adjusting Payment; \2\
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\2\ See 74 FR 54915, dated November 25, 2009, deleting GSAR
clause 552.232-71.
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(3) 552.232-73 Availability of Funds; \3\
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\3\ Ibid., deleting GSAR clause 552.232-73.
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(4) 552.232-78 Payment Information; \4\ and
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\4\ Ibid., deleting GSAR clause 552.232-78.
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(5) 552.246-76 Warranty of Pesticides.\5\
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\5\ See 74 FR 26110, dated June 1, 2009, deleting GSAR clause
552.246-76.
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b. Remove references to clauses that only apply to procurements
under the FSS or Multiple Award Schedule (MAS) program from GSAR
552.212-71 and 552.212-72. Based on GSA's review of GSAR 552.212-71 and
552.212-72, this proposed rule removes the following three (3) clauses
that apply exclusively to FSS or MAS contracts and are not appropriate
for broad commercial procurements:
(1) 552.215-72 Price Adjustment--Failure to Provide Accurate
Information; \6\
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\6\ The prescription for this clause at GSAR 515.408(d) directs
contracting officers to insert this clause in solicitations and
contracts under the MAS program when the contract contains the basic
clause 552.238-80 Industrial Funding Fee and Sales Reporting.
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(2) 552.238-73 Identification of Electronic Office Equipment
Providing Accessibility for the Handicapped; and
(3) 552.238-78 Identification of Products That Have Environmental
Attributes.
Removing references to these three (3) clauses will ensure
consistency with GSA's previous amendments to the GSAR to consolidate
clauses associated solely with GSA's FSS or MAS contracts into GSAR
Part 538.\7\
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\7\ See 75 FR 5241, dated February 2, 2010, and 84 FR 17030,
dated April 23, 2019.
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c. Relocate all references to commercial contract clauses required
by law from GSAR clause 552.212-71, which contains clauses required for
GSA policy only, and add to GSAR clause 552.212-72, which is focused on
statutory requirements. The two (2) clauses whose references are
transferred and their respective statutory authorities are as follows:
(1) 552.215-70 Examination of Records. This clause is required by
Examination of Facilities and Records of Contractor, 41 U.S.C. 4706;
and
(2) 552.232-23 Assignment of Claims. This clause is required by the
Assignment of Claims Act, 41 U.S.C. 6305, et. al.
2. Relocation of an FSS Clause
The proposed changes to the GSAR will relocate the prescription for
GSAR 552.215-72 at paragraph (d) of 515.408 to the new paragraph
(d)(36) at 538.273, and for conforming changes, renumber the price
adjustment clause at GSAR 552.215-72 to 552.238-117. The relocation of
this clause and its prescription is consistent with GSA's rewrite
efforts to move all FSS or MAS clauses into GSAR Part 538.
3. Editorial Changes
The proposed change to the GSAR will:
a. Delete GSAR 515.408(a)(1) to remove obsolete reference to GSAR
clause 552.212-70 Preparation of Offer (Multiple Award Schedule) and
renumber accordingly. On February 2, 2010, GSA deleted GSAR 552.212-70
\8\ but retained its text in GSA internal policy at I-FSS-972.\9\ The
proposed rule will eliminate all references to the obsolete GSAR clause
552.212-70 from GSAR 515.408.
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\8\ See 75 FR 5241 deleting GSAR clause 552.212-70 Preparation
of Offer (Multiple Award Schedule) from GSAR Part 512 and
contemplating moving the clause to GSAR Part 538 as a better fit.
The final rule for this case did not move the clause, but did delete
the clause.
\9\ See Acquisition Letter MV-20-03, dated February 27, 2020,
authorizing the continued use of Clause I-FSS-972, Preparation of
Offer (Multiple Award Schedule).
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b. Revise GSAR 552.212-71 to change the title of the referenced
clause from GSAR 552.232-72 Final Payment to GSAR 552.232-72 Final
Payment Under Building Services Contracts;
c. Correct grammatical errors in paragraphs (d)(2) and (d)(19) of
538.273; and
d. Incorporate minor editorial changes to enhance the readability
of the following provision and clause designations and prescriptions:
(1) paragraph (d)(22) of GSAR 538.273;
(2) paragraph (a) of GSAR 552.212-71; and
(3) the introductory text of GSAR 552.212-72.
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.
OMB anticipates that this will not be a significant regulatory action
and, therefore, will not be 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. 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 cannot take effect until 60 days after it is published in
the Federal Register. This rule is not anticipated to be a ``major
rule'' under 5 U.S.C. 804(2).
VI. Regulatory Flexibility Act
The General Services Administration does not expect this 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.
601, et seq. because the proposed changes to the GSAR do not add any
requirement but rather will reorganize clauses by removing,
transferring, re-titling and renumbering referenced clauses and will
make technical and editorial changes to ensure contracting officers
incorporate the correct clauses when procuring commercial products and
[[Page 77785]]
commercial services. However, an Initial Regulatory Flexibility
Analysis (IRFA) has been prepared consistent with 5 U.S.C. 603.
The Regulatory Secretariat will be submitting a copy of the Initial
Regulatory Flexibility Analysis (IRFA) to the Chief Counsel for
Advocacy of the Small Business Administration. A copy of the IRFA may
be obtained from the Regulatory Secretariat Division. The General
Services Administration invites comments from small business concerns
and other interested parties on the expected impact of this rule on
small entities.
The General Services Administration will also consider comments
from small entities concerning the existing regulations in subparts
affected by this 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 2019-G503) in correspondence.
The analysis is summarized as follows:
The General Services Administration is proposing to amend the GSAR
at 552.212-71 and 552.212-72 and related parts to clarify and
streamline the contract terms and conditions applicable to GSA
acquisitions of commercial products and commercial services.
The objective of the rule is to reorganize the appropriate GSAR
clauses and parts currently used in commercial solicitations and
contracts to reduce duplication and to ensure consistency within GSA's
guidance.
The rule ensures that contracting officers consider the appropriate
clauses in solicitations and contracts for procurements for commercial
products and commercial services. The legal basis for the rule is Title
40 of the United States Code (U.S.C.) Section 121.
The rule applies to large and small businesses, which are awarded
contracts for the acquisition of commercial products, including
commercial components, and commercial services. Information generated
from the System for Award Management (SAM), for Fiscal Years 2020-2021
has been used as the basis for estimating the number of contractors
that may involve the procurement of commercial services and commercial
products. The analysis focused on contracts for commercial items
procured pursuant to the procedures in GSAR Part 512 (Acquisition of
Commercial Items) and clause 552.212-4 that was included in the
contract.
Examination of this data revealed in fiscal years 2020 and 2021, an
average of 23,603 contracts were awarded for commercial products and
services. Of these 23,603 new awards, an average of 11,297 (48%)
contract awards were to small business entities.
This rule does not include any new reporting, recordkeeping, or
other compliance requirements for small businesses.
The General Services Administration does not expect this rule to
have a significant economic impact on a substantial number of small
business entities within the meaning of the Regulatory Flexibility Act,
at 5 U.S.C. 601. This rule merely reorganizes requirements currently in
use in solicitations and contracts involving the acquisition of
commercial products and commercial services, and does not implement new
or changed requirements.
This rule does not duplicate, overlap, or conflict with any other
Federal rules.
There are no known alternatives to this rule which would accomplish
the stated objectives. This rule does not initiate or impose any new
administrative or performance requirements on small business
contractors because the policies are already being followed.
VII. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the GSAR do not impose recordkeeping or information collection
requirements, or the collection of information from offerors,
contractors, or members of the public that require the approval of the
Office of Management and Budget (OMB) under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 515, 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 proposes to amend 48 CFR Parts 515, 538 and 552 as
set forth below:
0
1. The authority citation for 48 CFR parts 515, 538 and 552 continues
to read as follows:
Authority: 40 U.S.C. 121(c).
PART 515--CONTRACTING BY NEGOTIATION
515.408 [Amended]
0
2. Amend section 515.408 by--
0
a. Removing paragraph (a)(1);
0
b. Redesignating paragraphs (a)(2), (a)(3) and (a)(4) as paragraphs
(a)(1), (a)(2) and (a)(3);
0
c. Removing from the introductory text of paragraph (b), ``Please
refer to Clause 552.212-70, Preparation of Offer (Multiple Award
Schedule), for additional information concerning your offer.'';
0
d. Removing from paragraph (b)(3) the phrase, ``(See definition of
``concession'' and ``discount'' in 552.212-70.)'';
0
e. Removing from paragraph (c) the first sentence in Column 2;
0
f. Removing paragraph (d); and
0
g. Redesignating paragraph (e) as paragraph (d).
PART 538--FEDERAL SUPPLY SCHEDULE CONTRACTING
0
3. Amend section 538.273 by--
0
a. Revising the introductory text of paragraph (d)(22); and
0
b. Adding paragraph (d)(37).
The revision and addition read as follows:
538.273 FSS solicitation provisions and contract clauses.
* * * * *
(d) * * *
(22) 552.238-98, Clauses for Overseas Coverage. Use only in FSS
solicitations and contracts when overseas acquisition is contemplated.
The GSAR clauses and GSAR provisions in paragraphs (d)(22)(i) through
(xi) of this section shall also be inserted in full text, when
applicable.
* * * * *
(37) 552.238-117, Price Adjustment--Failure to Provide Accurate
Information. Use only in FSS solicitations and contracts under the MAS
program. This clause is used when the contract contains the basic
clause 552.238-80 Industrial Funding Fee and Sales Reporting.
* * * * *
PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
4. Revise section 552.212-71 to read as follows:
552.212-71 Contract Terms and Conditions Applicable to GSA Acquisition
of Commercial Products and Commercial Services.
As prescribed in 512.301(a)(1), insert the following clause:
Contract Terms and Conditions Applicable to GSA Acquisitions of
Commercial Products and Commercial Services (Jan, 2022)
(a) The Contractor agrees to comply with any clause that is
incorporated herein by reference to implement agency policy
applicable to acquisition of commercial products, including
commercial components, and commercial services. The clause in effect
based on the applicable regulation cited on the date the
solicitation is issued applies unless otherwise stated herein. The
[[Page 77786]]
Contracting Officer should check the clauses in paragraph (b) that
apply or delete the clauses that do not apply from the list. The
Contracting Officer may add the date of the clause if desired for
clarity. The GSAR clauses in paragraph (b) of this section are
incorporated by reference.
(b) Clauses.
552.203-71 Restriction on Advertising
552.211-73 Marking
552.219-70 Allocation of Orders--Partially Set-Aside Items
552.229-70 Federal, State, and Local Taxes
552.232-72 Final Payment Under Building Services Contracts
552.237-71 Qualifications of Employees
552.242-70 Status Report of Orders and Shipments
0
5. Revise section 552.212-72 to read as follows:
552.212-72 Contract Terms and Conditions Required To Implement
Statutes or Executive Orders Applicable to GSA Acquisition of
Commercial Products and Commercial Services.
As prescribed in 512.301(a)(2), insert the following clause:
Contract Terms and Conditions Required To Implement Statutes or
Executive Orders Applicable to GSA Acquisition of Commercial Products
and Commercial Services (Jan 2022)
The Contractor agrees to comply with any provision or clause
that is incorporated herein by reference to implement provisions of
law or Executive Orders applicable to acquisition of commercial
items or components. The provision or clause in effect based on the
applicable regulation cited on the date the solicitation is issued
applies unless otherwise stated herein. The contracting officer
should either check the provisions and clauses that apply or delete
the provisions and clauses that do not apply from the lists in
paragraphs (a) and (b). The contracting officer may add the date of
the provision or clause if desired for clarity. The GSAR provisions
in paragraph (a) and GSAR clauses in paragraph (b) are incorporated
by reference.
(a) Provisions.
(b) Clauses.
552.215-70 Examination of Records by GSA
552.223-70 Hazardous Substances
552.223-71 Nonconforming Hazardous Material
552.223-73 Preservation, Packaging, Packing, Marking, and Labeling
of Hazardous Materials (HAZMAT) for Shipments.
552.232-23 Assignment of Claims
(End of clause)
552.215-72 [Removed and Reserved]
0
6. Remove and reserve section 552.215-72.
0
7. Add section 552.238-117 to read as follows:
552.238-117 Price Adjustment--Failure to Provide Accurate Information.
As prescribed in 538.273(d)(36), insert the following clause:
Price Adjustment--Failure To Provide Accurate Information (Aug 1997)
(a) The Government, at its election, may reduce the price of
this contract or contract modification if the Contracting Officer
determines after award of this contract or contract modification
that the price negotiated was increased by a significant amount
because the Contractor failed to:
(1) Provide information required by this solicitation/contract
or otherwise requested by the Government; or
(2) Submit information that was current, accurate, and complete;
or
(3) Disclose changes in the Contractor's commercial
pricelist(s), discounts or discounting policies which occurred after
the original submission and prior to the completion of negotiations.
(b) The Government will consider information submitted to be
current, accurate and complete if the data is current, accurate and
complete as of 14 calendar days prior to the date it is submitted.
(c) If any reduction in the contract price under this clause
reduces the price for items for which payment was made prior to the
date of the modification reflecting the price reduction, the
Contractor shall be liable to and shall pay the United States--
(1) The amount of the overpayment; and
(2) Simple interest on the amount of such overpayment to be
computed from the date(s) of overpayment to the Contractor to the
date the Government is repaid by the Contractor at the applicable
underpayment rate effective each quarter prescribed by the Secretary
of Treasury under 26 U.S.C. 6621(a)(2).
(d) Failure to agree on the amount of the decrease shall be
resolved as a dispute.
(e) In addition to the remedy in paragraph (a) of this clause,
the Government may terminate this contract for default. The rights
and remedies of the Government specified herein are not exclusive,
and are in addition to any other rights and remedies provided by law
or under this contract.
(End of clause)
[FR Doc. 2022-27106 Filed 12-19-22; 8:45 am]
BILLING CODE 6820-61-P
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