General Services Acquisition Regulation; GSAR Case 2008-G505; Rewrite of GSAR Part 514, Sealed Bidding, 47737-47740 [E9-22209]
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Federal Register / Vol. 74, No. 179 / Thursday, September 17, 2009 / Rules and Regulations
(iii) That if the non-resident alien
serves as a lifeboatman, he or she must
have the necessary lifeboatman’s
endorsement; and
(iv) The non-resident alien has
completed the training for crewmembers
on passenger ships performing duties
involving safety or care for passengers,
as required in subpart 12.35 of this
subchapter.
(c) No more than 25 percent of the
total number of ratings on a U.S. flag
large passenger vessel may be aliens,
whether admitted to the United States
for permanent residence or authorized
for employment in the United States as
non-resident aliens.
(d) The owner or operator of a U.S.
flag large passenger vessel employing
non-resident aliens holding Coast
Guard-issued merchant mariner
credentials described in subpart 12.40 of
this subchapter must:
(1) Retain custody of all non-resident
alien merchant mariner credentials for
the duration of employment, under
§ 12.40–13(b)(2) of this subchapter; and
(2) Return all non-resident alien
merchant mariner credentials to the
Coast Guard upon termination of
employment, under § 12.40–13(b)(3) of
this subchapter.
(e) The owner or operator of a U.S.
flag large passenger vessel employing
non-resident aliens holding Coast
Guard-issued merchant mariner
credentials described in subpart 12.40 of
this subchapter is subject to the civil
penalty provisions specified in 46
U.S.C. 8103(f), for any violation of this
section.
Dated: September 10, 2009.
Jeffrey G. Lantz,
Director of Commercial Regulations &
Standards CG–52.
[FR Doc. E9–22355 Filed 9–16–09; 8:45 am]
BILLING CODE 4910–15–P
GENERAL SERVICES
ADMINISTRATION
48 CFR Parts 501, 514, and 552
[GSAR Amendment 2009–11; GSAR Case
2008–G505 (Change 39); Docket 2008–0007;
Sequence 20]
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RIN 3090–AI73
General Services Acquisition
Regulation; GSAR Case 2008–G505;
Rewrite of GSAR Part 514, Sealed
Bidding
AGENCY: Office of Acquisition Policy,
General Services Administration (GSA).
ACTION: Final rule.
SUMMARY: The General Services
Administration (GSA) is amending the
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GSA Acquisition Regulation (GSAR) by
revising the sections of GSAR Part 514
that provide requirements for sealed
bidding. This rule is a result of the GSA
Manual (GSAM) Rewrite initiative
undertaken by GSA to revise the GSAM
to maintain consistency with the
Federal Acquisition Regulation (FAR),
and to implement streamlined and
innovative acquisition procedures that
contractors, bidders, and GSA
contracting personnel can utilize when
entering into and administering
contractual relationships. The GSAM
incorporates the GSAR as well as
internal agency acquisition policy.
DATES: October 19, 2009.
FOR FURTHER INFORMATION CONTACT: For
clarification of content, contact Mr.
Michael O. Jackson at (202) 208–4949.
For information pertaining to the status
or publication schedules, contact the
Regulatory Secretariat (VPR), 1800 F
Street, NW., Room 4041, Washington,
DC 20405, (202) 501–4755. Please cite
GSAR Case 2008–G505 (Change 39), in
all correspondence.
SUPPLEMENTARY INFORMATION:
A. Background
The GSA is amending the GSAR to
revise sections of GSAR Part 514 that
provide requirements for sealed
bidding.
This final rule is a result of the GSA
Acquisition Manual (GSAM) rewrite
initiative undertaken by GSA to revise
the GSAM to maintain consistency with
the Federal Acquisition Regulation
(FAR) and to implement streamlined
and innovative acquisition procedures
that contractors, bidders, and GSA
contracting personnel can utilize when
entering into and administering
contractual relationships. The GSAM
incorporates the GSAR as well as
internal agency acquisition policy.
The GSA will rewrite each part of the
GSAR and GSAM, and as each GSAR
part is rewritten, will publish it in the
Federal Register.
This rule covers the rewrite of GSAR
Part 514. The specific changes are as
follows:
501.106 OMB Approval under the
Paperwork Reduction Act.
• Added OMB Control No. 3090–0162
as a cross reference for 514.201–1.
514.201–2 Part I—The Schedule.
• Changed paragraph (a) from ‘‘When
you’’ to ‘‘When using’’. Also in
paragraph (a) changed ‘‘which’’ to
‘‘that’’ and added all three FAR clauses
for Prompt Payment (52.232–25,
52.232–26, and 52.232–27).
• Changed the word ‘‘offer’’ to ‘‘bid’’.
• Changed paragraph (b) from ‘‘When
you use’’ to ‘‘When using’’ to clarify the
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reference to ‘‘you’’ and added a
reference to the Standard Form 1449 as
an example that this form can also be
used.
514.201–6 Solicitation provisions.
• Changed ‘‘When you’’ to ‘‘When
considering’’ to delete the reference to
the word ‘‘you’’.
• Changed ‘‘All or None Offers’’ to
‘‘All or None Bids’’.
• Deleted the reference for Alternate I
because the alternate is being proposed
for deletion because it is not consistent
with the intention of the basic clause.
514.201–7 Contract clauses.
• In the old paragraph (a) changed
‘‘you’’ to ‘‘The contracting officer’’.
• Deleted paragraph (b), Examination
of Records. The clause does not provide
basic audit rights that are in addition to
the FAR clauses at 52.215–2, Audit and
Records—Negotiation and 52.214–26,
Audit and Records—Sealed Bidding.
And as opposed to the GSA clause, the
FAR clause is specific to sealed bids.
Further, the GSA clause grants to the
agency rights to audit subcontractors
that are in excess of those granted by the
FAR and the statute.
514.202–4 Bid samples.
• Renamed paragraphs (a) and (b) to be
more consistent with the FAR.
• Also in paragraphs (a) and (b)
restructured the language to remove the
word ‘‘you’’ and replaced with
contracting officer.
• Clarified the language to state who
must take physical custody of bid
samples.
• Deleted paragraph (c) because it is
redundant with FAR 14.202–4(d).
514.202–5 Descriptive Literature.
• Added a new GSAR section in order
to address the requirements of FAR
14.202–5(c).
514.270–1 Definition. Deleted
hyphenation in ‘‘separately-priced’’.
514.270–2 Justification for use.
• Inserted ‘‘the contracting officer
should’’ in paragraph (b) and made last
sentence of paragraph (3) a new number
paragraph (4) and renumbered old
paragraphs (4) and (5) to paragraphs (5)
and (6), respectively.
• Added ‘‘the contracting officer
should’’ to replace the understood
‘‘you’’ and deleted ‘‘Do’’ in paragraph
(c).
514.270–3 Evaluation factors for
award.
• Edited to avoid either using the
passive voice or repeating ‘‘the
contracting officer’’.
514.270–4 Grouping line items for
aggregate award.
• In paragraph (a) the title ‘‘Type of
contract’’ was changed to one that is
more descriptive of the substance of the
paragraph; type of contract refers to Part
16 contract types.
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Federal Register / Vol. 74, No. 179 / Thursday, September 17, 2009 / Rules and Regulations
• In paragraph (b) changed the ‘‘when
you group’’ to ‘‘when grouping’’ and in
paragraph (d)(3)(i) changed ‘‘It can
cause you to lose’’ to ‘‘It can cause the
loss of’’.
• In paragraph (d)(2) changed
‘‘respond’’ to ‘‘responded’’.
514.270–6 Guidelines for using the
weight factors method.
• In paragraph (a) changed ‘‘you have’’
to ‘‘there are’’.
• In paragraph (d) changed ‘‘You may
reduce estimated quantities’’ to
‘‘Estimated quantities may be reduced’’.
• In paragraph (e) deleted the ‘‘you’’ in
the first sentence.
514.270–7 Guidelines for using the
price list method.
• In paragraph (a) changed ‘‘you need
to make’’ to ‘‘making’’.
• In paragraph (b) changed ‘‘When you
use’’ to ‘‘using’’.
• In paragraph (c) changed ‘‘You may
develop price lists’’ to ‘‘Price lists may
be developed’’.
• In paragraph (d) changed ‘‘you use’’
to ‘‘the contracting officer uses’’ and
changed ‘‘You may provide’’ to ‘‘This
information may be provided’’.
• In paragraph (e) changed ‘‘You may
use prices’’ to ‘‘Prices may be used’’.
• In paragraph (h) changed ‘‘If you
cannot estimate the Government’s
needs’’ to ‘‘If the Government’s needs
cannot be estimated’’.
• In paragraph (i)(6) changed ‘‘If you
provide’’ to ‘‘If providing’’.
• In paragraph (i)(8) deleted the
sentence in its entirety and replaced it
with ‘‘When the solicitation further
groups united prices by trade or
business category, multiple percentages
may be required’’.
514.407–3 Other mistakes disclosed
before award.
• Deleted paragraph (b) because it is
redundant with FAR 14.407–3(f).
• Renumbered old paragraphs (1) and
(2) as paragraphs (a) and (b),
respectively.
514.407–4 Mistakes after award.
• Added ‘‘are required to’’ and
changed ‘‘your’’ to ‘‘the contracting
officer’s’’.
552.214–70 ‘‘All or None’’ Bids.
• In paragraph (a) deleted the first part
of the sentence so it now to begins with
‘‘The Government . . . .’’
• Deleted Alternate I in its entirety to
match the changes.
• Changed all occurrences of the word
‘‘offer’’ to ‘‘bid’’.
552.214–71 Progressive Awards and
Monthly Quantity Allocations.
• Changed all occurrences of the
words ‘‘offeror’’, ‘‘offer’’ or ‘‘offering’’ to
‘‘bidder’’, ‘‘bid’’, or bidding.
552.214–72 Bid Sample
Requirements.
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• Deleted ‘‘NOTE: (1)’’ because it is
redundant.
Discussion of Comments
A proposed rule for the regulatory
portion of the GSAM was published in
the Federal Register at 73 FR 60225 on
October 10, 2008. The public comment
period for GSAR Part 514 closed on
December 9, 2008, and four (4)
comments were received. A discussion
of these comments is provided below:
Comment 1: 514.201–2.
‘‘(See FAR 52.232–25)’’ has been
added to the subsection. However, that
is only one of three Prompt Payment
clauses. Recommend all three clauses be
referenced as historically construction
has been procured with sealed bidding.
While that has changed in the last
decade, all three clauses should still be
referenced: ‘‘(See FAR 52.232–25,
52.232–26, or 52.232–27, as
applicable)’’.
Response:
Concur. All three Prompt Payment
clauses have been added.
Comment 2: 514.202–5.
Recommend deleting this section. It
merely states the clause in the FAR is
sufficient. It does not add any value. If
the information is already in the FAR,
no further information needs to be
identified in the GSAR.
Response:
Non-concur; 514.202–5 amplifies the
information, or rather points the reader
to the information in the FAR.
Comment 3: 514.270–2.
The new paragraph (a)(4) already
exists, verbatim, as part of paragraph
(a)(3). As the proposed paragraph (a)(4)
is related to the information in
paragraph (a)(3), recommend leaving it
in paragraph (a)(3), but reformatting the
sentence to make it clear it is part of
(a)(3). In the current GSAR, it has been
dropped down a line.
Response:
Non-concur. Items (a)(3) and (a)(4) are
different enough that they can be listed
as two different items in the list of
series.
Comment 4: 514.270–3.
Recommend adding a clause or
provision as a consistent method for
providing the notification required in
the solicitation. Revise as, ‘‘Insert a
clause substantially the same as the
clause at 552.214–XX, Evaluation for
Aggregate Award, in solicitations that
will include aggregate line items for
award.’’
Response:
Non-concur. The team believes that
FAR 52.214–22, Evaluation of Bids for
Multiple Awards, provides equivalent
coverage.
This is not a significant regulatory
action and, therefore, was not subject to
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review under Section 6(b) of Executive
Order 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
B. Regulatory Flexibility Act
The General Services Administration
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, 5 U.S.C. 601, et seq.,
because the revisions are not considered
substantive. The revisions only update
and reorganize existing coverage. This is
not a significant change. Therefore, a
Regulatory Flexibility Analysis was not
performed. In accordance with 5 U.S.C.
610, the proposed rule requested
comments from small entities
concerning this assessment, and no
comments were received.
C. Paperwork Reduction Act
The Paperwork Reduction Act
applies; however, these changes to the
GSAR do not impose additional
information collection requirements to
the paperwork burden previously
approved under OMB Control Number
3090–0027.
List of Subjects in 48 CFR Parts 501,
514, and 552
Government procurement.
Dated: August 31, 2009.
David A. Drabkin,
Senior Procurement Executive, Office of
Acquisition Policy, General Services
Administration.
Therefore, GSA amends 48 CFR parts
501, 514, and 552 as set forth below:
■ 1. The authority citation for 48 CFR
parts 501, 514, and 552 continues to
read as follows:
■
Authority: 40 U.S.C. 121(c).
PART 501—GENERAL SERVICES
ADMINISTRATION ACQUISITION
REGULATION SYSTEM
501.106
[Amended]
2. Amend section 501.106 by adding
the GSAR Reference number ‘‘514.201–
1’’, in numerical sequence, and its
corresponding OMB Control No. ‘‘3090–
0163’’.
■
PART 514—SEALED BIDDING
3. Revise section 514.201–2 to read as
follows:
■
514.201–2
Part I—The Schedule.
(a) When using Standard Form 33,
Solicitation, Offer and Award, include
the following cautionary notice:
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‘‘Notice to Bidders—Use Item 13 of
the Standard Form 33, Solicitation,
Offer and Award, to offer prompt
payment discounts. The Prompt
Payment clause of this solicitation sets
forth payment terms. Do not insert any
statement in Item 13 that requires
payment sooner than the time stipulated
in the Prompt Payment clause (See FAR
52.232–25, 52.232–26, or 52.232–27, as
applicable). EXAMPLE: If you insert
‘‘NET 20’’ in Item 13, GSA will reject
your bid as nonresponsive because the
entry contradicts the 30 day payment
terms specified in the Prompt Payment
clause.’’
(b) When using other authorized
forms (e.g., Standard Form 1447,
Solicitation/Contract; Standard Form
1449, Solicitation/Contract/Order for
Commercial Items), include the notice
in paragraph (a) of this section. Change
the reference to the form number, form
title, and item number accordingly.
■ 4. Revise section 514.201–6 to read as
follows:
514.201–6
Solicitation provisions.
When considering all or none bids,
insert the provision at 552.214–70, ‘‘All
or None’’ Bids, in the solicitation.
■ 5. Revise section 514.201–7 to read as
follows:
514.201–7
Contract clauses.
Stock replenishment contracts. For
some stock replenishment contracts,
individual contractors may be unable to
furnish the Government’s monthly
requirements. The contracting officer
may determine that progressive awards
will be more expedient. In such cases,
insert a clause substantially the same as
the clause at 552.214–71, Progressive
Awards and Monthly Quantity
Allocations, in the solicitation and
contract.
■ 6. Revise section 514.202–4 to read as
follows:
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514.202–4
Bid samples.
(a) Requirements for samples in
invitations for bids. (1) When bid
samples are required, the contracting
officer shall require bidders to submit
samples produced by the manufacturer
whose products will be supplied under
the contract.
(2) The FAR limits use of bid samples
to cases where the contracting officer
cannot describe some characteristics of
a product adequately in the
specification or purchase description.
This usually applies to subjective
characteristics. The contracting officer
may determine that there is a need to
examine objective characteristics of bid
samples to determine the
responsiveness of a bid. The contracting
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officer should base the determination on
past experience or other valid
considerations. In the solicitation,
separately list ‘‘Subjective
Characteristics’’ and ‘‘Objective
Characteristics’’.
(3) A provision appears at 552.214–
72, Bid Sample Requirements. This
provision may be modified to fit the
circumstances of a procurement.
(b) Handling bid samples. (1) Samples
from accepted bids must be retained for
the period of contract performance. If
there are no outstanding claims
regarding the contract, the contracting
officer may authorize disposal of the
samples at the end of the contract term
following the bidder’s instructions.
(2) If the contracting officer
anticipates a claim regarding the
contract, the contracting officer shall
require that the bid samples be retained
until the claim is resolved.
(3) The contracting officer shall
require that samples from unsuccessful
bids be retained until award. After
award, these samples may be disposed
of following the bidder’s instructions.
■ 7. Add section 514.202–5 to read as
follows:
514.202–5
Descriptive literature.
Requirements for Invitations for bids.
When using brand name or equal
purchase descriptions, the provision at
FAR 52.211–6 satisfies the requirement
for descriptive literature.
514.203
8. Remove section 514.203.
■ 9. Amend section 514.270–2 by—
■ a. Redesignating paragraphs (a)(4) and
(a)(5) as paragraphs (a)(5) and (a)(6),
respectively, and adding new paragraph
(a)(4); and
■ b. Revising the introductory text of
paragraph (b), and paragraph (c).
■ The revised and added text reads as
follows:
■
Guidelines for use.
(a) * * *
(4) Awarding the low-demand articles
in conjunction with the high-demand
articles may encourage competition.
*
*
*
*
*
(b) Before deciding to combine items
for aggregate award, the contracting
officer should consider the following
factors:
*
*
*
*
*
(c) The contracting officer should not
use an aggregate award if it will
significantly restrict the number of
eligible bidders.
■ 10. Revise section 514.270–3 to read
as follows:
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Evaluation factors for award.
The solicitation should clearly state
the basis for evaluating bids for
aggregate award, require bidders to
submit a price on each item within the
group or a percentage to be added or
subtracted from a list price, and advise
bidders that failure to submit prices as
required within a group makes a bid
ineligible for award for that group.
■ 11. Amend section 514.270–4 by—
■ a. Revising paragraph (a);
■ b. Removing from paragraph (b) ‘‘you
group’’ and adding ‘‘grouping’’ in its
place;
■ c. Removing from paragraph (d)(2)
‘‘respond’’ and adding ‘‘responded’’ in
its place; and
■ d. Removing from paragraph (d)(3)(i)
‘‘you to lose’’ and adding ‘‘the loss of’’
in its place.
514.270–4 Grouping line items for
aggregate award.
(a) Supplies and services. This
subsection applies to acquisitions of
supplies and services.
*
*
*
*
*
■ 12. Amend section 514.270–6 by—
■ a. Removing from the introductory
text of paragraph (a) ‘‘you have’’ and
adding ‘‘there are’’ in its place;
■ b. Revising the first sentence in
paragraph (d); and
■ c. Removing from paragraph (e) the
word ‘‘you’’.
■ The revised text reads as follows:
514.270–6 Guidelines for using the weight
factors method.
[Removed]
514.270–2
514.270–3
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*
*
*
*
*
(d) Estimated quantities may be
reduced to smaller numbers by a
common denominator. * * *
*
*
*
*
*
■ 13. Amend section 514.270–7 by—
■ a. Revising the first sentence in
paragraph (a);
■ b. Revising the introductory text of
paragraphs (b) and (c);
■ c. Revising paragraph (d);
■ d. Revising the second sentence of
paragraph (e); and
■ e. Revising the third sentence in
paragraph (h), and paragraphs (i)(6) and
(i)(8).
■ The revised text reads as follows:
514.270–7 Guidelines for using the price
list method.
(a) General. The price list method
helps avoid unbalanced bidding when
making aggregate awards, but lack
accurate estimates of anticipated
quantities. * * *
(b) Solicitation requirements. When
using the price list method, in the
solicitation:
*
*
*
*
*
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(c) Developing list prices. Price lists
may be developed using one or more of
the following sources:
*
*
*
*
*
(d) First time use for an item or
service. The first time the contracting
officer uses list prices for an item or
service, give prospective bidders an
opportunity to review the proposed list.
Also provide information on how GSA
will use the list prices. This information
may be provided in a draft solicitation.
(e) * * *. Prices may be used from
previous awards made using the weight
factors method to develop price lists.
*
*
*
*
*
(h) * * *. If the Government’s needs
cannot be estimated, the solicitation
may include past orders. * * *
(i) * * *
(6) If providing quantity estimates,
state that the estimates are for
information only and do not constitute
guarantees or commitments to order
items under the contract.
*
*
*
*
*
(8) When the solicitation further
groups unit prices by trade or business
category, multiple percentages may be
required.
*
*
*
*
*
■ 14. Revise section 514.407–3 to read
as follows:
514.407–3 Other mistakes disclosed
before award.
Delegation of authority by head of the
agency. Under FAR 14.407–3(e),
contracting directors (see 502.101) are
authorized, without power of
redelegation, to make:
(a) The determinations regarding
corrections and withdrawals under FAR
14.407–3(a), (b), and (c); and
(b) The corollary determinations not
to permit withdrawal or correction
under FAR 14.407–3(d).
■ 15. Revise section 514.407–4 to read
as follows:
514.407–4
Mistakes after award.
The contracting director and assigned
counsel are required to review and
approve the contracting officer’s
determinations under FAR 14.407–4(b)
and (c).
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PART 552—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
16. Revise the section heading, date of
the provision and paragraphs (a) and (b)
of section 552.214–70; and remove
Alternate I.
■ The revised text reads as follows:
■
552.214–70
*
*
‘‘All or None’’ Bids.
*
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*
*
13:59 Sep 16, 2009
‘‘ALL OR NONE’’ BIDS (Oct 2009)
(a) The Government reserves the right to
evaluate bids and make awards on an ‘‘all or
none’’ basis as provided below.
(b) A bid submitted on an ‘‘all or none’’ or
similar basis will be evaluated as follows:
The lowest acceptable bid exclusive of the
‘‘all or none’’ bid will be selected with
respect to each item (or group of items when
the solicitation provides for aggregate
awards) and the total cost of all items thus
determined shall be compared with the total
of the lowest acceptable ‘‘all or none’’ bid.
Award will be made to result in the lowest
total cost to the Government.
NOTE: Bidders that propose to furnish an
item or group of items from more than one
manufacturer or production point must
submit two samples from the production of
each manufacturer or production point.
17. Amend section 552.214–71 by
revising the date of the clause,
paragraph (a)(1), the introductory text of
paragraph (a)(2), and paragraph (b) to
read as follows:
DEPARTMENT OF TRANSPORTATION
■
552.214–71 Progressive Awards and
Monthly Quantity Allocations.
*
*
*
*
*
PROGRESSIVE AWARDS AND MONTHLY
QUANTITY ALLOCATIONS (Oct 2009)
(a) Monthly quantity allocation.
(1) Set forth below are the Government’s
estimated annual and monthly requirements
for each stock item covered by this
solicitation. Bids shall indicate, in the spaces
provided, the monthly quantity which the
bidder is willing to furnish of any item or
group of items involving the use of the same
production facilities. In making monthly
allocations, bidders are urged to group as
many items as possible. Such groupings will
make it possible for the Government to make
fullest use of the production capabilities of
each bidder.
(2) Bidders need not limit their monthly
allocations to the Government’s estimated
monthly requirements, since additional
unanticipated needs may occur during the
period of the contract. If a bid does not
include monthly allocation quantities, it will
be deemed to offer to furnish all of the
Government’s requirements, even though
they may exceed the stated estimated
requirements.
*
*
*
*
*
(b) Progressive awards. If the low
responsive bid’s monthly quantity allocation
is less than the Government’s estimated
requirements, the Government may make
progressive awards beginning with the low
responsive bid and including each next low
responsive bid to the extent necessary to
meet the estimated requirements.
*
*
*
*
*
18. Amend section 552.214–72 by—
a. Revising the date of the provision;
b. Revising the ‘‘Note’’ in paragraph
(b); and
■ c. Adding paragraph (e).
■ The revised and added text reads as
follows:
■
■
■
552.214–72
*
*
Bid Sample Requirements.
*
*
*
BID SAMPLE REQUIREMENTS (Oct 2009)
*
*
*
*
*
(b) * * *
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*
*
*
*
*
(e) Contracting Officer insert address.
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[FR Doc. E9–22209 Filed 9–16–09; 8:45 am]
BILLING CODE 6820–61–S
National Highway Traffic Safety
Administration
49 CFR Parts 573 and 579
[Docket No. NHTSA–2008–0169; Notice 2]
RIN 2127–AK28
Early Warning Reporting Regulations
AGENCY: National Highway Traffic
Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Final rule.
SUMMARY: This rule amends certain
provisions of the early warning
reporting (EWR) rule published
pursuant to the Transportation Recall
Enhancement, Accountability, and
Documentation (TREAD) Act and adds
requirements for information identifying
products involved in a recall under 49
CFR part 573 Defect and
Noncompliance Responsibility and
Reports. This rule modifies the
threshold for submitting quarterly EWR
reports for light vehicle, bus, mediumheavy vehicle (excluding emergency
vehicles), motorcycle and trailer
manufacturers. It further requires
manufacturers submitting EWR reports
to submit product names that are
consistent from reporting quarter to
quarter and amends the definition of
‘‘other safety campaign.’’ It also amends
part 573 Defect and Noncompliance
Responsibility and Reports to add
requirements that tire manufacturers
provide a range of tire identification
numbers of recalled tires and
manufacturers provide the country of
origin of a component involved in a
recall.
DATES: Effective Date: The effective date
of this final rule is October 19, 2009.
Compliance Date: Compliance by bus
manufacturers producing 100 or more
but fewer than 500 buses annually is not
required until September 13, 2010.
ADDRESSES: If you wish to petition for
reconsideration of this rule, you should
refer in your petition to the docket
E:\FR\FM\17SER1.SGM
17SER1
]]>Agencies
[Federal Register Volume 74, Number 179 (Thursday, September 17, 2009)]
[Rules and Regulations]
[Pages 47737-47740]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-22209]
=======================================================================
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GENERAL SERVICES ADMINISTRATION
48 CFR Parts 501, 514, and 552
[GSAR Amendment 2009-11; GSAR Case 2008-G505 (Change 39); Docket 2008-
0007; Sequence 20]
RIN 3090-AI73
General Services Acquisition Regulation; GSAR Case 2008-G505;
Rewrite of GSAR Part 514, Sealed Bidding
AGENCY: Office of Acquisition Policy, General Services Administration
(GSA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The General Services Administration (GSA) is amending the GSA
Acquisition Regulation (GSAR) by revising the sections of GSAR Part 514
that provide requirements for sealed bidding. This rule is a result of
the GSA Manual (GSAM) Rewrite initiative undertaken by GSA to revise
the GSAM to maintain consistency with the Federal Acquisition
Regulation (FAR), and to implement streamlined and innovative
acquisition procedures that contractors, bidders, and GSA contracting
personnel can utilize when entering into and administering contractual
relationships. The GSAM incorporates the GSAR as well as internal
agency acquisition policy.
DATES: October 19, 2009.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Mr. Michael O. Jackson at (202) 208-4949. For information pertaining to
the status or publication schedules, contact the Regulatory Secretariat
(VPR), 1800 F Street, NW., Room 4041, Washington, DC 20405, (202) 501-
4755. Please cite GSAR Case 2008-G505 (Change 39), in all
correspondence.
SUPPLEMENTARY INFORMATION:
A. Background
The GSA is amending the GSAR to revise sections of GSAR Part 514
that provide requirements for sealed bidding.
This final rule is a result of the GSA Acquisition Manual (GSAM)
rewrite initiative undertaken by GSA to revise the GSAM to maintain
consistency with the Federal Acquisition Regulation (FAR) and to
implement streamlined and innovative acquisition procedures that
contractors, bidders, and GSA contracting personnel can utilize when
entering into and administering contractual relationships. The GSAM
incorporates the GSAR as well as internal agency acquisition policy.
The GSA will rewrite each part of the GSAR and GSAM, and as each
GSAR part is rewritten, will publish it in the Federal Register.
This rule covers the rewrite of GSAR Part 514. The specific changes
are as follows:
501.106 OMB Approval under the Paperwork Reduction Act.
Added OMB Control No. 3090-0162 as a cross reference for
514.201-1.
514.201-2 Part I--The Schedule.
Changed paragraph (a) from ``When you'' to ``When using''.
Also in paragraph (a) changed ``which'' to ``that'' and added all three
FAR clauses for Prompt Payment (52.232-25, 52.232-26, and 52.232-27).
Changed the word ``offer'' to ``bid''.
Changed paragraph (b) from ``When you use'' to ``When
using'' to clarify the reference to ``you'' and added a reference to
the Standard Form 1449 as an example that this form can also be used.
514.201-6 Solicitation provisions.
Changed ``When you'' to ``When considering'' to delete the
reference to the word ``you''.
Changed ``All or None Offers'' to ``All or None Bids''.
Deleted the reference for Alternate I because the
alternate is being proposed for deletion because it is not consistent
with the intention of the basic clause.
514.201-7 Contract clauses.
In the old paragraph (a) changed ``you'' to ``The
contracting officer''.
Deleted paragraph (b), Examination of Records. The clause
does not provide basic audit rights that are in addition to the FAR
clauses at 52.215-2, Audit and Records--Negotiation and 52.214-26,
Audit and Records--Sealed Bidding. And as opposed to the GSA clause,
the FAR clause is specific to sealed bids. Further, the GSA clause
grants to the agency rights to audit subcontractors that are in excess
of those granted by the FAR and the statute.
514.202-4 Bid samples.
Renamed paragraphs (a) and (b) to be more consistent with
the FAR.
Also in paragraphs (a) and (b) restructured the language
to remove the word ``you'' and replaced with contracting officer.
Clarified the language to state who must take physical
custody of bid samples.
Deleted paragraph (c) because it is redundant with FAR
14.202-4(d).
514.202-5 Descriptive Literature.
Added a new GSAR section in order to address the
requirements of FAR 14.202-5(c).
514.270-1 Definition. Deleted hyphenation in ``separately-priced''.
514.270-2 Justification for use.
Inserted ``the contracting officer should'' in paragraph
(b) and made last sentence of paragraph (3) a new number paragraph (4)
and renumbered old paragraphs (4) and (5) to paragraphs (5) and (6),
respectively.
Added ``the contracting officer should'' to replace the
understood ``you'' and deleted ``Do'' in paragraph (c).
514.270-3 Evaluation factors for award.
Edited to avoid either using the passive voice or
repeating ``the contracting officer''.
514.270-4 Grouping line items for aggregate award.
In paragraph (a) the title ``Type of contract'' was
changed to one that is more descriptive of the substance of the
paragraph; type of contract refers to Part 16 contract types.
[[Page 47738]]
In paragraph (b) changed the ``when you group'' to ``when
grouping'' and in paragraph (d)(3)(i) changed ``It can cause you to
lose'' to ``It can cause the loss of''.
In paragraph (d)(2) changed ``respond'' to ``responded''.
514.270-6 Guidelines for using the weight factors method.
In paragraph (a) changed ``you have'' to ``there are''.
In paragraph (d) changed ``You may reduce estimated
quantities'' to ``Estimated quantities may be reduced''.
In paragraph (e) deleted the ``you'' in the first
sentence.
514.270-7 Guidelines for using the price list method.
In paragraph (a) changed ``you need to make'' to
``making''.
In paragraph (b) changed ``When you use'' to ``using''.
In paragraph (c) changed ``You may develop price lists''
to ``Price lists may be developed''.
In paragraph (d) changed ``you use'' to ``the contracting
officer uses'' and changed ``You may provide'' to ``This information
may be provided''.
In paragraph (e) changed ``You may use prices'' to
``Prices may be used''.
In paragraph (h) changed ``If you cannot estimate the
Government's needs'' to ``If the Government's needs cannot be
estimated''.
In paragraph (i)(6) changed ``If you provide'' to ``If
providing''.
In paragraph (i)(8) deleted the sentence in its entirety
and replaced it with ``When the solicitation further groups united
prices by trade or business category, multiple percentages may be
required''.
514.407-3 Other mistakes disclosed before award.
Deleted paragraph (b) because it is redundant with FAR
14.407-3(f).
Renumbered old paragraphs (1) and (2) as paragraphs (a)
and (b), respectively.
514.407-4 Mistakes after award.
Added ``are required to'' and changed ``your'' to ``the
contracting officer's''.
552.214-70 ``All or None'' Bids.
In paragraph (a) deleted the first part of the sentence so
it now to begins with ``The Government . . . .''
Deleted Alternate I in its entirety to match the changes.
Changed all occurrences of the word ``offer'' to ``bid''.
552.214-71 Progressive Awards and Monthly Quantity Allocations.
Changed all occurrences of the words ``offeror'',
``offer'' or ``offering'' to ``bidder'', ``bid'', or bidding.
552.214-72 Bid Sample Requirements.
Deleted ``NOTE: (1)'' because it is redundant.
Discussion of Comments
A proposed rule for the regulatory portion of the GSAM was
published in the Federal Register at 73 FR 60225 on October 10, 2008.
The public comment period for GSAR Part 514 closed on December 9, 2008,
and four (4) comments were received. A discussion of these comments is
provided below:
Comment 1: 514.201-2.
``(See FAR 52.232-25)'' has been added to the subsection. However,
that is only one of three Prompt Payment clauses. Recommend all three
clauses be referenced as historically construction has been procured
with sealed bidding. While that has changed in the last decade, all
three clauses should still be referenced: ``(See FAR 52.232-25, 52.232-
26, or 52.232-27, as applicable)''.
Response:
Concur. All three Prompt Payment clauses have been added.
Comment 2: 514.202-5.
Recommend deleting this section. It merely states the clause in the
FAR is sufficient. It does not add any value. If the information is
already in the FAR, no further information needs to be identified in
the GSAR.
Response:
Non-concur; 514.202-5 amplifies the information, or rather points
the reader to the information in the FAR.
Comment 3: 514.270-2.
The new paragraph (a)(4) already exists, verbatim, as part of
paragraph (a)(3). As the proposed paragraph (a)(4) is related to the
information in paragraph (a)(3), recommend leaving it in paragraph
(a)(3), but reformatting the sentence to make it clear it is part of
(a)(3). In the current GSAR, it has been dropped down a line.
Response:
Non-concur. Items (a)(3) and (a)(4) are different enough that they
can be listed as two different items in the list of series.
Comment 4: 514.270-3.
Recommend adding a clause or provision as a consistent method for
providing the notification required in the solicitation. Revise as,
``Insert a clause substantially the same as the clause at 552.214-XX,
Evaluation for Aggregate Award, in solicitations that will include
aggregate line items for award.''
Response:
Non-concur. The team believes that FAR 52.214-22, Evaluation of
Bids for Multiple Awards, provides equivalent coverage.
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. This rule is
not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The General Services Administration 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, 5 U.S.C.
601, et seq., because the revisions are not considered substantive. The
revisions only update and reorganize existing coverage. This is not a
significant change. Therefore, a Regulatory Flexibility Analysis was
not performed. In accordance with 5 U.S.C. 610, the proposed rule
requested comments from small entities concerning this assessment, and
no comments were received.
C. Paperwork Reduction Act
The Paperwork Reduction Act applies; however, these changes to the
GSAR do not impose additional information collection requirements to
the paperwork burden previously approved under OMB Control Number 3090-
0027.
List of Subjects in 48 CFR Parts 501, 514, and 552
Government procurement.
Dated: August 31, 2009.
David A. Drabkin,
Senior Procurement Executive, Office of Acquisition Policy, General
Services Administration.
0
Therefore, GSA amends 48 CFR parts 501, 514, and 552 as set forth
below:
0
1. The authority citation for 48 CFR parts 501, 514, and 552 continues
to read as follows:
Authority: 40 U.S.C. 121(c).
PART 501--GENERAL SERVICES ADMINISTRATION ACQUISITION REGULATION
SYSTEM
501.106 [Amended]
0
2. Amend section 501.106 by adding the GSAR Reference number ``514.201-
1'', in numerical sequence, and its corresponding OMB Control No.
``3090-0163''.
PART 514--SEALED BIDDING
0
3. Revise section 514.201-2 to read as follows:
514.201-2 Part I--The Schedule.
(a) When using Standard Form 33, Solicitation, Offer and Award,
include the following cautionary notice:
[[Page 47739]]
``Notice to Bidders--Use Item 13 of the Standard Form 33,
Solicitation, Offer and Award, to offer prompt payment discounts. The
Prompt Payment clause of this solicitation sets forth payment terms. Do
not insert any statement in Item 13 that requires payment sooner than
the time stipulated in the Prompt Payment clause (See FAR 52.232-25,
52.232-26, or 52.232-27, as applicable). EXAMPLE: If you insert ``NET
20'' in Item 13, GSA will reject your bid as nonresponsive because the
entry contradicts the 30 day payment terms specified in the Prompt
Payment clause.''
(b) When using other authorized forms (e.g., Standard Form 1447,
Solicitation/Contract; Standard Form 1449, Solicitation/Contract/Order
for Commercial Items), include the notice in paragraph (a) of this
section. Change the reference to the form number, form title, and item
number accordingly.
0
4. Revise section 514.201-6 to read as follows:
514.201-6 Solicitation provisions.
When considering all or none bids, insert the provision at 552.214-
70, ``All or None'' Bids, in the solicitation.
0
5. Revise section 514.201-7 to read as follows:
514.201-7 Contract clauses.
Stock replenishment contracts. For some stock replenishment
contracts, individual contractors may be unable to furnish the
Government's monthly requirements. The contracting officer may
determine that progressive awards will be more expedient. In such
cases, insert a clause substantially the same as the clause at 552.214-
71, Progressive Awards and Monthly Quantity Allocations, in the
solicitation and contract.
0
6. Revise section 514.202-4 to read as follows:
514.202-4 Bid samples.
(a) Requirements for samples in invitations for bids. (1) When bid
samples are required, the contracting officer shall require bidders to
submit samples produced by the manufacturer whose products will be
supplied under the contract.
(2) The FAR limits use of bid samples to cases where the
contracting officer cannot describe some characteristics of a product
adequately in the specification or purchase description. This usually
applies to subjective characteristics. The contracting officer may
determine that there is a need to examine objective characteristics of
bid samples to determine the responsiveness of a bid. The contracting
officer should base the determination on past experience or other valid
considerations. In the solicitation, separately list ``Subjective
Characteristics'' and ``Objective Characteristics''.
(3) A provision appears at 552.214-72, Bid Sample Requirements.
This provision may be modified to fit the circumstances of a
procurement.
(b) Handling bid samples. (1) Samples from accepted bids must be
retained for the period of contract performance. If there are no
outstanding claims regarding the contract, the contracting officer may
authorize disposal of the samples at the end of the contract term
following the bidder's instructions.
(2) If the contracting officer anticipates a claim regarding the
contract, the contracting officer shall require that the bid samples be
retained until the claim is resolved.
(3) The contracting officer shall require that samples from
unsuccessful bids be retained until award. After award, these samples
may be disposed of following the bidder's instructions.
0
7. Add section 514.202-5 to read as follows:
514.202-5 Descriptive literature.
Requirements for Invitations for bids. When using brand name or
equal purchase descriptions, the provision at FAR 52.211-6 satisfies
the requirement for descriptive literature.
514.203 [Removed]
0
8. Remove section 514.203.
0
9. Amend section 514.270-2 by--
0
a. Redesignating paragraphs (a)(4) and (a)(5) as paragraphs (a)(5) and
(a)(6), respectively, and adding new paragraph (a)(4); and
0
b. Revising the introductory text of paragraph (b), and paragraph (c).
0
The revised and added text reads as follows:
514.270-2 Guidelines for use.
(a) * * *
(4) Awarding the low-demand articles in conjunction with the high-
demand articles may encourage competition.
* * * * *
(b) Before deciding to combine items for aggregate award, the
contracting officer should consider the following factors:
* * * * *
(c) The contracting officer should not use an aggregate award if it
will significantly restrict the number of eligible bidders.
0
10. Revise section 514.270-3 to read as follows:
514.270-3 Evaluation factors for award.
The solicitation should clearly state the basis for evaluating bids
for aggregate award, require bidders to submit a price on each item
within the group or a percentage to be added or subtracted from a list
price, and advise bidders that failure to submit prices as required
within a group makes a bid ineligible for award for that group.
0
11. Amend section 514.270-4 by--
0
a. Revising paragraph (a);
0
b. Removing from paragraph (b) ``you group'' and adding ``grouping'' in
its place;
0
c. Removing from paragraph (d)(2) ``respond'' and adding ``responded''
in its place; and
0
d. Removing from paragraph (d)(3)(i) ``you to lose'' and adding ``the
loss of'' in its place.
514.270-4 Grouping line items for aggregate award.
(a) Supplies and services. This subsection applies to acquisitions
of supplies and services.
* * * * *
0
12. Amend section 514.270-6 by--
0
a. Removing from the introductory text of paragraph (a) ``you have''
and adding ``there are'' in its place;
0
b. Revising the first sentence in paragraph (d); and
0
c. Removing from paragraph (e) the word ``you''.
0
The revised text reads as follows:
514.270-6 Guidelines for using the weight factors method.
* * * * *
(d) Estimated quantities may be reduced to smaller numbers by a
common denominator. * * *
* * * * *
0
13. Amend section 514.270-7 by--
0
a. Revising the first sentence in paragraph (a);
0
b. Revising the introductory text of paragraphs (b) and (c);
0
c. Revising paragraph (d);
0
d. Revising the second sentence of paragraph (e); and
0
e. Revising the third sentence in paragraph (h), and paragraphs (i)(6)
and (i)(8).
0
The revised text reads as follows:
514.270-7 Guidelines for using the price list method.
(a) General. The price list method helps avoid unbalanced bidding
when making aggregate awards, but lack accurate estimates of
anticipated quantities. * * *
(b) Solicitation requirements. When using the price list method, in
the solicitation:
* * * * *
[[Page 47740]]
(c) Developing list prices. Price lists may be developed using one
or more of the following sources:
* * * * *
(d) First time use for an item or service. The first time the
contracting officer uses list prices for an item or service, give
prospective bidders an opportunity to review the proposed list. Also
provide information on how GSA will use the list prices. This
information may be provided in a draft solicitation.
(e) * * *. Prices may be used from previous awards made using the
weight factors method to develop price lists.
* * * * *
(h) * * *. If the Government's needs cannot be estimated, the
solicitation may include past orders. * * *
(i) * * *
(6) If providing quantity estimates, state that the estimates are
for information only and do not constitute guarantees or commitments to
order items under the contract.
* * * * *
(8) When the solicitation further groups unit prices by trade or
business category, multiple percentages may be required.
* * * * *
0
14. Revise section 514.407-3 to read as follows:
514.407-3 Other mistakes disclosed before award.
Delegation of authority by head of the agency. Under FAR 14.407-
3(e), contracting directors (see 502.101) are authorized, without power
of redelegation, to make:
(a) The determinations regarding corrections and withdrawals under
FAR 14.407-3(a), (b), and (c); and
(b) The corollary determinations not to permit withdrawal or
correction under FAR 14.407-3(d).
0
15. Revise section 514.407-4 to read as follows:
514.407-4 Mistakes after award.
The contracting director and assigned counsel are required to
review and approve the contracting officer's determinations under FAR
14.407-4(b) and (c).
PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
16. Revise the section heading, date of the provision and paragraphs
(a) and (b) of section 552.214-70; and remove Alternate I.
0
The revised text reads as follows:
552.214-70 ``All or None'' Bids.
* * * * *
``ALL OR NONE'' BIDS (Oct 2009)
(a) The Government reserves the right to evaluate bids and make
awards on an ``all or none'' basis as provided below.
(b) A bid submitted on an ``all or none'' or similar basis will
be evaluated as follows: The lowest acceptable bid exclusive of the
``all or none'' bid will be selected with respect to each item (or
group of items when the solicitation provides for aggregate awards)
and the total cost of all items thus determined shall be compared
with the total of the lowest acceptable ``all or none'' bid. Award
will be made to result in the lowest total cost to the Government.
0
17. Amend section 552.214-71 by revising the date of the clause,
paragraph (a)(1), the introductory text of paragraph (a)(2), and
paragraph (b) to read as follows:
552.214-71 Progressive Awards and Monthly Quantity Allocations.
* * * * *
PROGRESSIVE AWARDS AND MONTHLY QUANTITY ALLOCATIONS (Oct 2009)
(a) Monthly quantity allocation.
(1) Set forth below are the Government's estimated annual and
monthly requirements for each stock item covered by this
solicitation. Bids shall indicate, in the spaces provided, the
monthly quantity which the bidder is willing to furnish of any item
or group of items involving the use of the same production
facilities. In making monthly allocations, bidders are urged to
group as many items as possible. Such groupings will make it
possible for the Government to make fullest use of the production
capabilities of each bidder.
(2) Bidders need not limit their monthly allocations to the
Government's estimated monthly requirements, since additional
unanticipated needs may occur during the period of the contract. If
a bid does not include monthly allocation quantities, it will be
deemed to offer to furnish all of the Government's requirements,
even though they may exceed the stated estimated requirements.
* * * * *
(b) Progressive awards. If the low responsive bid's monthly
quantity allocation is less than the Government's estimated
requirements, the Government may make progressive awards beginning
with the low responsive bid and including each next low responsive
bid to the extent necessary to meet the estimated requirements.
* * * * *
0
18. Amend section 552.214-72 by--
0
a. Revising the date of the provision;
0
b. Revising the ``Note'' in paragraph (b); and
0
c. Adding paragraph (e).
0
The revised and added text reads as follows:
552.214-72 Bid Sample Requirements.
* * * * *
BID SAMPLE REQUIREMENTS (Oct 2009)
* * * * *
(b) * * *
NOTE: Bidders that propose to furnish an item or group of items
from more than one manufacturer or production point must submit two
samples from the production of each manufacturer or production
point.
* * * * *
(e) Contracting Officer insert address.
--------------------------------
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[FR Doc. E9-22209 Filed 9-16-09; 8:45 am]
BILLING CODE 6820-61-S
