Rule2024-00519
General Services Administration Acquisition Regulation; Standardizing Federal Supply Schedule Clause and Provision Prescriptions
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
January 12, 2024
Effective
February 12, 2024
Issuing agencies
General Services Administration
Abstract
The General Services Administration is issuing this final rule amending the General Services Administration Acquisition Regulation (GSAR) to clarify when GSAR clauses apply to Federal Supply Schedule contracts.
Full Text
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<title>Federal Register, Volume 89 Issue 9 (Friday, January 12, 2024)</title>
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[Federal Register Volume 89, Number 9 (Friday, January 12, 2024)]
[Rules and Regulations]
[Pages 2172-2174]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-00519]
[[Page 2172]]
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GENERAL SERVICES ADMINISTRATION
48 CFR Part 538
[GSAR Case 2022-G514; Docket No. GSA-GSAR-2023-0009; Sequence No. 1]
RIN 3090-AK58
General Services Administration Acquisition Regulation;
Standardizing Federal Supply Schedule Clause and Provision
Prescriptions
AGENCY: Office of Acquisition Policy, General Services Administration
(GSA).
ACTION: Final rule.
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SUMMARY: The General Services Administration is issuing this final rule
amending the General Services Administration Acquisition Regulation
(GSAR) to clarify when GSAR clauses apply to Federal Supply Schedule
contracts.
DATES: Effective: February 12, 2024.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Adina Torberntsson, Procurement Analyst, at <a href="/cdn-cgi/l/email-protection#ff988c9e8d8f9093969c86bf988c9ed1989089"><span class="__cf_email__" data-cfemail="b6d1c5d7c4c6d9dadfd5cff6d1c5d798d1d9c0">[email protected]</span></a> or
720-475-0568. For information pertaining to status or publication
schedules, contact the Regulatory Secretariat at <a href="/cdn-cgi/l/email-protection#3e594d5f4c5b594d5b5d7e594d5f10595148"><span class="__cf_email__" data-cfemail="b5d2c6d4c7d0d2c6d0d6f5d2c6d49bd2dac3">[email protected]</span></a> or
202-501-4755. Please cite GSAR Case 2022-G514.
SUPPLEMENTARY INFORMATION:
I. Background
GSA published a proposed rule in the Federal Register at 88 FR
15941 on March 15, 2023 to amend the GSAR to address when the GSAR
clauses apply to Federal Supply Schedule contracts established by a
delegated agency.
The GSA Schedule, also known as Federal Supply Schedule (FSS), and/
or Multiple Award Schedule (MAS), is a long-term governmentwide
contract with commercial companies that provide access to millions of
commercial products and services at fair and reasonable prices to the
Federal Government. GSA may delegate certain responsibilities to other
agencies (i.e., GSA has delegated authority to the Department of
Veterans Affairs (VA) to procure medical supplies under the VA Federal
Supply Schedules Program).
Such delegation provides the authorized agency autonomy over their
resulting contract. The contract is published on the FSS website, and
often looks like every other available FSS contract apart from the
naming convention. Contracts administered solely by GSA have a ``GS''
naming convention.
This change will streamline the prescription language. Prescription
language is the language that instructs when a clause is to be applied,
when establishing a Schedule contract.
II. Discussion and Analysis
Analysis of Public Comments
GSA provided the public a 60-day comment period (March 15, 2023, to
May 15, 2023). GSA did not receive any comments from the public.
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 ensure GSA's contracting officers are using
the clauses correctly, clarifies how GSA's delegation to other
Government agencies work, provides instruction on how to document the
contract file, and the procedures for requesting a deviation. This
change will have no impact on the approximately 13,000 FSS contractors
already using the existing clauses. The changes do not alter the manner
in which the contractors conduct business.
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 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 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. OIRA has determined this rule is not to be a
``major rule'' under 5 U.S.C. 804.
VI. Regulatory Flexibility Act
GSA 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.C. 601, et seq., because the
described changes clarify the language and only slightly modify the
current text. The meaning behind the changed text remains the same, and
therefore any burden would have been identified previously. However, a
Final Regulatory Flexibility Analysis (FRFA) has been prepared. The
FRFA has been prepared consistent with the criteria of 5 U.S.C. 604 and
is summarized as follows:
The objective of the final rule is to improve the understanding
of delegation and coordination expectations of FSS policies for
delegated agencies. There were no comments submitted and therefore
no significant issues raised by the public in response to the
initial regulatory flexibility analysis.
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. In addition, 41 U.S.C.
152 provides GSA authority over the FSS program.
The final rule applies to large and small businesses, which are
awarded FSS contracts. Information generated from the System for
Award Management (SAM), for Fiscal Year 2022 has been used as the
basis for estimating the number of contractors that may be involved.
Specifically, FSS contracts for delegated agencies (i.e., Department
of Veteran Affairs) were analyzed. Examination of this data revealed
1,700 applicable FSS contracts were awarded. Of these 1,700 new
awards, 1,417 (83 percent) contract awards were to small business
entities.
The final rule does not change reporting, recordkeeping, or
other compliance requirements for FSS contracts. The rule merely
clarifies requirements currently in use in FSS solicitations and
contracts, and does not implement new or changed requirements.
The final rule does not duplicate, overlap, or conflict with any
other Federal rules.
There are no known alternatives to this final rule which would
accomplish the stated objectives. This rule does not initiate or
impose any new administrative or performance requirements on small
business
[[Page 2173]]
contractors because the policies are already being followed. The
final rule merely clarifies language in the GSAR to make it more
accessible to the reader by removing references to outdated clauses
or excessive language.
The Regulatory Secretariat Division will be submitting a copy of
the FRFA to the Chief Counsel for Advocacy of the Small Business
Administration. A copy of the FRFA may be obtained from the Regulatory
Secretariat Division.
VII. Paperwork Reduction Act
The 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 Part 538
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 part 538 as set forth below:
PART 538--FEDERAL SUPPLY SCHEDULE CONTRACTING
0
1. The authority citation for part 538 continues to read as follows:
Authority: 40 U.S.C. 121(c).
0
2. Add sections 538.000 and 538.001 to read as follows:
538.000 Scope of part.
(a) This part prescribes policies and procedures for contracting
for supplies and services under the Federal Supply Schedule (FSS)
program. GSA may delegate certain responsibilities for other agency
acquisition programs as they relate to the establishment of individual
federal supply schedules.
(b) The authority of other agencies to award FSS contracts can only
be accomplished through delegation from GSA. An agency delegated
authority by GSA to award contracts under the FSS program is
responsible for complying with GSA regulations and policies that apply
to the FSS program, unless an exception is approved by GSA (see
538.001).
538.001 General.
If a policy, regulation, or clause is identified as not applicable
or in conflict to what is delegated by GSA, the delegated agency shall
submit a determination and finding supporting the rationale as to why
it does not apply, or is in conflict, in accordance with the delegation
that was already received from GSA. The determination and finding must
be approved by the GSA Senior Procurement Executive, the Commissioner
of the Federal Acquisition Service (FAS) or a designee.
0
3. Add section 538.201 to subpart 538.2 to read as follows:
538.201 Coordination requirements.
GSA will coordinate with other agencies who administer FSS
contracts specific to their delegated authority (i.e., the Department
of Veterans Affairs). Coordination will ensure adherence to policies
and procedures at the program level, such as providing guidance on
approved exceptions (see 538.001).
0
4. Revise section 538.273 to read as follows:
538.273 FSS solicitation provisions and contract clauses.
The following clauses and provisions apply to FSS solicitations and
contracts, unless otherwise excepted (see 538.001) or as otherwise
stated below. For example, if only used in solicitations, the
prescription will clearly state this. If the language does not specify
``solicitations'' then the clause applies to both FSS solicitations and
contracts.
(a) Insert the following provisions in FSS solicitations:
(1) 552.238-70, Cover Page for Worldwide Federal Supply Schedules.
Use in all FSS solicitations.
(2) 552.238-71, Notice of Total Small Business Set-Aside. Use in
FSS solicitations containing special item numbers (SINs) that are set
aside for small business.
(3) 552.238-72, Information Collection Requirements. Use in all FSS
solicitations.
(b) Insert the following clauses and provisions in FSS
solicitations and contracts as an addendum to FAR 52.212-1,
Instructions to Offerors--Commercial Products and Commercial Services:
(1) 552.238-73, Identification of Electronic Office Equipment
Providing Accessibility for Individuals with Disabilities. the
Handicapped. Use only in FSS solicitations for electronic office
equipment.
(2) 552.238-74, Introduction of New Supplies/Services (INSS). Only
for those solicitations allowing the introduction of new supplies/
services. Note: GSA Form 1649, Notification of Federal Supply Schedule
Improvement, may be required if revising a Special Item Number (SIN).
(c) Insert the following provisions in FSS solicitations as an
addendum to FAR 52.212-2, Evaluation--Commercial Products and
Commercial Services:
(1) 552.238-75, Evaluation--Commercial Products and Commercial
Services (Federal Supply Schedule).
(2) 552.238-76, Use of Non-Government Employees to Review Offers.
Use only in FSS solicitations when non-government employees may be
utilized to review solicitation responses.
(d) Insert the following clauses in FSS solicitations and contracts
as an addendum to Clause FAR 52.212-4, Contract Terms and Conditions--
Commercial Products and Commercial Services:
(1) 552.238-77, Submission and Distribution of Authorized Federal
Supply Schedule Price Lists.
(2) 552.238-78, Identification of Products that have Environmental
Attributes. Use only in solicitations and contracts that contemplate
products with environmental attributes.
(3) 552.238-79, Cancellation.
(4) 552.238-80, Industrial Funding Fee and Sales Reporting. Use
Alternate I for FSS with Transactional Data Reporting requirements.
(5) 552.238-81, Price Reductions. Use Alternate I for FSS with
Transactional Data Reporting requirements.
(6) 552.238-82, Modifications (Federal Supply Schedules).
(i) Use Alternate I for FSS that only accept eMod.
(ii) Use Alternate II for FSS with Transactional Data Reporting
requirements.
(7) 552.238-83, Examination of Records by GSA (Federal Supply
Schedules).
(8) 552.238-84, Discounts for Prompt Payment.
(9) 552.238-85, Contractor's Billing Responsibilities.
(10) 552.238-86, Delivery Schedule. Use only for supplies.
(11) 552.238-87, Delivery Prices.
(12) 552.238-88, GSA Advantage![supreg]. This clause is not
required for the Department of Veterans Affairs Federal Supply
Schedules.
(13) 552.238-89, Deliveries to the U.S. Postal Service. Use only
for mailable articles when delivery to a U.S. Postal Service (USPS)
facility is contemplated.
(14) 552.238-90, Characteristics of Electric Current. Use only when
the supply of equipment which uses electrical current is contemplated.
(15) 552.238-91, Marking and Documentation Requirements for
Shipping. Use only for supplies when the need for outlining the minimum
information and documentation required for shipping is contemplated.
(16) 552.238-92, Vendor Managed Inventory (VMI) Program. Use only
for supplies when a VMI Program is contemplated.
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(17) 552.238-93, Order Acknowledgement. Use only for supplies.
(18) 552.238-94, Accelerated Delivery Requirements. Use only for
supplies.
(19) 552.238-95, Separate Charge for Performance Oriented Packaging
(POP). Use only for products defined as hazardous under Federal
Standard No. 313.
(20) 552.238-96, Separate Charge for Delivery within Consignee's
Premises. Use only for supplies when allowing offerors to propose
separate charges for deliveries within the consignee's premises.
(21) 552.238-97, Parts and Service.
(22) 552.238-98, Clauses for Overseas Coverage. Use only when
overseas acquisition is contemplated. Choose the most appropriate
clause(s) to the contract scenario. For example there are multiple free
on board (F.o.b.) clauses. Select those that apply best to what is
being procured. The following clauses and provisions shall also be
inserted in full text, when applicable.
(i) FAR 52.214-34 Submission of Offers in the English Language.
(ii) FAR 52.214-35 Submission of Offers in U.S. Currency.
(iii) 552.238-90 Characteristics of Electric Current.
(iv) 552.238-91 Marking and Documentation Requirements for
Shipping.
(v) 552.238-97 Parts and Service.
(vi) 552.238-99 Delivery Prices Overseas.
(vii) 552.238-100 Transshipments.
(viii) 552.238-101 Foreign Taxes and Duties.
(ix) FAR 52.247-29 F.o.b Origin.
(x) FAR 52.247-34 F.o.b. Destination.
(xi) FAR 52.247-48 F.o.b. Destination--Evidence of Shipment.
(23) 552.238-99, Delivery Prices Overseas. Use only when overseas
acquisition is contemplated.
(24) 552.238-100, Transshipments. Use only when overseas
acquisition is contemplated.
(25) 552.238-101, Foreign Taxes and Duties. Use only when overseas
acquisition is contemplated.
(26) 552.238-102, English Language and U.S. Dollar Requirements.
(27) 552.238-103, Electronic Commerce. This clause is not required
for Department of Veterans Affairs Federal Supply Schedules.
(28) 552.238-104, Dissemination of Information by Contractor.
(29) 552.238-105, Deliveries Beyond the Contractual Period--Placing
of Orders.
(30) 552.238-106, Interpretation of Contract Requirements.
(31) 552.238-107, Export Traffic Release (Supplies). Use in FSS
solicitations and contracts for supplies. This clause is not required
for vehicles.
(32) 552.238-108, Spare Parts Kit. Use only for products requiring
spare part kits. This information is to be specified at the order
level.
(33) 552.238-109, Authentication Supplies and Services. Use only
for information technology associated with the Homeland Security
Presidential Directive 12 (HSPD-12).
(34) 552.238-110, Commercial Satellite Communication (COMSATCOM)
Services. Use only for COMSATCOM services.
(35) 552.238-111, Environmental Protection Agency Registration
Requirement. Use only for supplies when products may require
registration with the Environmental Protection Agency.
(36) 552.238-116, Option to Extend the Term of the FSS Contract.
Use when appropriate.
(e) Insert the following fill-in information within the blank of
paragraph (d) of FAR clause 52.216-22, Indefinite Quantity: ``the
completion of customer order, including options, 60 months following
the expiration of the FSS contract ordering period''.
[FR Doc. 2024-00519 Filed 1-11-24; 8:45 am]
BILLING CODE 6820-61-P
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</html>Indexed from Federal Register on January 12, 2024.
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