Rule2023-19396
General Services Administration Acquisition Regulation (GSAR); Streamline GSA Commercial Contract Clause Requirements
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
September 12, 2023
Effective
October 12, 2023
Issuing agencies
General Services Administration
Abstract
The General Services Administration (GSA) is issuing this final rule amending the GSAR to clarify and streamline the clauses contracting officers should reference in acquisitions for commercial products and services.
Full Text
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<title>Federal Register, Volume 88 Issue 175 (Tuesday, September 12, 2023)</title>
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[Federal Register Volume 88, Number 175 (Tuesday, September 12, 2023)]
[Rules and Regulations]
[Pages 62472-62474]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-19396]
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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: Final rule.
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SUMMARY: The General Services Administration (GSA) is issuing this
final rule amending the GSAR to clarify and streamline the clauses
contracting officers should reference in acquisitions for commercial
products and services.
DATES: Effective: October 12, 2023.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Mr. Nicholas Giles or Ms. Johnnie McDowell, Procurement Analysts at
202-718-6112 or <a href="/cdn-cgi/l/email-protection#82c5d1c3d0d2edeeebe1fbc2e5f1e3ace5edf4"><span class="__cf_email__" data-cfemail="3b7c687a696b54575258427b5c485a155c544d">[email protected]</span></a>. For information pertaining to
status or publication schedules, contact the Regulatory Secretariat
Division at 202-501-4755 or <a href="/cdn-cgi/l/email-protection#afe8fceefdcac8dccaccefc8dcce81c8c0d9"><span class="__cf_email__" data-cfemail="6e293d2f3c0b091d0b0d2e091d0f40090118">[email protected]</span></a>. Please cite GSAR Case
2019-G503.
SUPPLEMENTARY INFORMATION:
I. Background
GSA published a proposed rule in the Federal Register at 87 FR
77783 on December 20, 2022, to amend the GSAR to streamline,
reorganize, and delete duplicative and outdated clauses. These changes
can be categorized into three areas: reorganization of commercial
clauses and applicable parts; relocation of an FSS clause; and
editorial changes.
This rule updates several clauses and other related parts by
eliminating out of date references and any requirements that are not
necessary by law. Specifically, GSA streamlined and reorganized the
references in GSAR Clauses 552.212-71 and 552.212-72, and other related
GSAR sections to reduce duplicative content and to ensure consistency
within GSA's guidance as it relates to the acquisition of commercial
products and commercial services.
In addition, 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.
II. Discussion of the Final Rule
A. Analysis of Public Comments
GSA provided the public a 60-day comment period (December 20, 2022,
to February 21, 2023). GSA did not receive any comments from the
public.
B. Summary of Changes
GSA did not make any significant changes, or changes of any kind,
since publication of the proposed rule.
III. Expected Impact of the Rule
This final rule will assist GSA's contracting officers in ensuring
appropriate safeguards are followed when procuring commercial products
and services. Contracting officers will be able to clearly identify
which clauses to consider inserting in solicitations and contracts when
procuring commercial products and services. In addition, the removal of
duplicative and outdated clauses will reduce the amount of time
contracting officers need in preparing solicitation packages and
monitoring contracts.
IV. Executive Orders 12866, 13563 and 14094
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.
E.O. 14094 (Modernizing Regulatory Review) supplements and reaffirms
the principles, structures, and definitions governing contemporary
regulatory review established in E.O. 12866 and E.O. 13563. The Office
of Information and Regulatory Affairs (OIRA) in the Office of
Management and Budget (OMB) has determined that this
[[Page 62473]]
is not a significant regulatory action and, therefore, was not subject
to review under Section 6(b) of Executive Order 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 GSA 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. OIRA in OMB has determined that
this is not a major rule under 5 U.S.C. 804.
VI. Regulatory Flexibility Act
GSA does not expect this final rule to have a significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act, at 5 U.S.C. 601, et seq., because the
rule incorporates clauses that are currently in use in GSA commercial
solicitations and contracts and contractors are familiar with and are
currently complying with these practices. However, a Final Regulatory
Flexibility Analysis (FRFA) has been prepared. There were no comments
submitted in response to the initial regulatory flexibility analysis
provided in the proposed rule. The FRFA has been prepared consistent
with the criteria of 5 U.S.C. 604 and is summarized as follows:
The GSA is issuing a final rule amending 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 final rule is to ensure contracting officers
consider the appropriate clauses when procuring GSA acquisitions for
commercial products and services.
There were no comments submitted and therefore no significant
issues raised by the public in response to the initial regulatory
flexibility analysis. However, GSA made three minor changes to GSAR
clauses 552.212-71, 552.212-72 and 552.238-117. The clauses all
required the date of the clauses to be changed to reflect the
modifications made in this GSAR case.
The final rule applies to large and small business entities, which
are responding to solicitations or are awarded contracts for commercial
products or services. This final rule will not have a significant
economic impact on a substantial number of small entities because the
changes to the GSAR do not add any new requirements but rather will
streamline the procurement process by reorganizing clauses, removing
duplicative or outdated clauses, transferring, re-titling and
renumbering referenced clauses and make technical and editorial changes
to ensure contracting officers incorporate the correct clauses when
procuring commercial products and commercial services.
GSA does not expect this final 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.
The final rule does not impose any new reporting or recordkeeping
requirements on any small entities.
The final 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.
Interested parties may obtain a copy of the FRFA from the
Regulatory Secretariat Division. The Regulatory Secretariat Division
has submitted a copy of the FRFA to the Chief Counsel for Advocacy of
the Small Business Administration.
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 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 amends 48 CFR parts 515, 538 and 552 as set forth
below:
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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]
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2. Amend section 515.408 by--
0
a. Removing paragraph (a)(1);
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b. Redesignating paragraphs (a)(2), (3) and (4) as paragraphs (a)(1),
(2) and (3);
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c. Removing the first sentence in the note in paragraph (b)
introductory text;
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d. Removing the parenthetical last sentence in paragraph (b)(3);
0
e. Removing the first sentence in the ``Column 2'' under paragraph (c);
0
f. Removing paragraph (d); and
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g. Redesignating paragraph (e) as paragraph (d).
PART 538--Federal Supply Schedule Contracting
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3. Amend section 538.273 by revising paragraph (d)(22) introductory
text and adding paragraph (d)(37) to 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
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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 (Oct 2023)
(a) The Contractor agrees to comply with any clause that is
incorporated herein by reference to implement
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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
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
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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 (Oct 2023)
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.
__552.223-72 Hazardous Material Information.
(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.
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)(37), insert the following clause:
Price Adjustment--Failure To Provide Accurate Information (Oct 2023)
(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. 2023-19396 Filed 9-11-23; 8:45 am]
BILLING CODE 6820-61-P
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