Notice of a Class Deviation To Address Commercial Supplier Agreement Terms Inconsistent With Federal Law, 15011-15013 [2015-06422]
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Federal Register / Vol. 80, No. 54 / Friday, March 20, 2015 / Notices
mstockstill on DSK4VPTVN1PROD with NOTICES
measure and monitor systemic risk and
counterparty exposure, as well as
improve operational efficiencies. A
single global system would help support
the shared objective of a more stable
financial system.
While the Federal Reserve has
considered retrieving LEI’s from the
issuers directly, this method has been
deemed as ineffective since the
associated structure data is very limited
at this time. Reconciling the entity’s LEI
with their current structure data would
be difficult and most likely result in
inaccuracies given that so many
institutions have similar attributes, such
as entity names. Therefore, obtaining
the LEI directly from the reporting
entity is the most reliable source to
accurately match an entity with the
correct LEI.
The Federal Reserve proposes to add
the LEI to the FR Y–6 and FR Y–7
organizational chart effective with fiscal
year ends beginning June 30, 2015.
Submission of existing LEI information
would follow the normal FR Y–6 and FR
Y–7 submission deadlines. The Federal
Reserve proposes a one-time
information collection to populate
existing LEI data for all FR Y–10
reportable entities (excluding branches),
as of June 30, 2015. Respondents would
submit this information no later than
September 30, 2015. LEIs issued after
June 30, 2015, should be reported on the
appropriate FR Y–10 schedules. For all
LEIs assigned between June 30, 2015,
and September 30, 2015, information
must be received at the appropriate
Federal Reserve Bank by October 30,
2015. The Federal Reserve would
provide a means for institutions to
provide their one-time submission data
in a format easier than individual FR Y–
10 submissions.
Question: Comments are invited on
whether collecting existing LEI
information only from entities that are
reportable on the FR Y–10 would be
sufficient rather than collecting LEI
information from all entities reportable
on the FR Y–6 and FR Y–7
organizational charts.
Board of Governors of the Federal Reserve
System, March 16, 2015.
Robert deV. Frierson,
Secretary of the Board.
[FR Doc. 2015–06363 Filed 3–19–15; 8:45 am]
BILLING CODE 6210–01–P
GENERAL SERVICES
ADMINISTRATION
[NOTICE–MVA–2015–01; Docket No. 2015–
0002; Sequence No. 4]
Notice of a Class Deviation To Address
Commercial Supplier Agreement
Terms Inconsistent With Federal Law
Office of Government-wide
Policy, General Services
Administration.
ACTION: Request for Information (RFI).
AGENCY:
The Office of Acquisition
Policy is requesting feedback on a
proposed class deviation to the Federal
Acquisition Regulation (FAR) and the
General Services Acquisition Regulation
(GSAR) to address common Commercial
Supplier Agreement terms that are
inconsistent with or create ambiguity
with Federal law. This class deviation
will go into effect forty-five (45) days
from the date of publication of this RFI
in the Federal Register, after
considering comments received.
DATES: Comments: Interested parties
should submit written comments to the
Regulatory Secretariat Division at one of
the addresses shown below on or before
April 20, 2015.
ADDRESSES: Submit comments in
response to Notice—MVA–2015–01 by
any of the following methods:
• Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
searching for ‘‘Notice—MVA–2015–01’’.
Select the link ‘‘Comment Now’’ that
corresponds with ‘‘Notice—MVA–2015–
01’’ and follow the instructions
provided on the screen. Please include
your name, company name (if any), and
‘‘Notice—MVA–2015–01’’ on your
attached document.
• Mail: General Services
Administration, Regulatory Secretariat
(MVCB), ATTN: Ms. Flowers/Notice—
MVA–2015–01, 1800 F Street NW., 2nd
Floor, Washington, DC 20405–0001.
Instructions: Please submit comments
only and cite Notice—MVA–2015–01 in
all correspondence related to this case.
All comments received will be posted
without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided.
FOR FURTHER INFORMATION CONTACT: Mr.
James Tsujimoto, Program Analyst,
Acquisition Policy Division, at
telephone 202–208–3585 or email
james.tsujimoto@gsa.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
Background
GSA defines Commercial Supplier
Agreements as terms and conditions
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15011
that are customarily offered to the
public by vendors of supplies or
services that meet the definition of
‘‘commercial item’’ and are intended to
create a binding legal obligation on the
end user. Commercial Supplier
Agreements are particularly common in
information technology acquisitions,
including acquisitions of commercial
computer software and commercial
technical data, but they may apply to
any supply or service.
Customarily, commercial item
supplies and services are offered to the
public under standard agreements that
may take a variety of forms, including
license agreements, terms of service
(TOS), terms of sale or purchase, and
similar agreements. These customary,
standard Commercial Supplier
Agreements typically contain terms and
conditions that make sense when the
purchaser is a private party but are
inappropriate when the purchaser is the
Federal Government.
The existence of Federallyincompatible terms in contractors’
standard Commercial Supplier
Agreements has long been recognized in
FAR 27.405–3(b), which is limited to
the acquisition of commercial computer
software. This clause advises
contracting officers to exercise caution
when accepting a contractor’s terms and
conditions. However, the use of
Commercial Supplier Agreements is not
limited to information technology
acquisitions; Commercial Supplier
Agreements have become ubiquitous in
a broad variety of contexts, from travel
to telecommunications to financial
services to building maintenance
systems, including purchases below the
simplified acquisition threshold.
Discrepancies between Commercial
Supplier Agreements and Federal law or
the Government’s needs create recurrent
points of inconsistency. Below are
several examples of incompatible
clauses that are commonly found in
Commercial Supplier Agreements:
• Jurisdiction or venue clauses may
require that disputes be resolved in a
particular state or Federal court. Such
clauses conflict with the sovereign
immunity of the US Government and
cannot apply to litigation where the US
Government is a defendant because
those disputes must be heard either in
US District Court (28 U.S.C. 1346) or the
US Court of Federal Claims (28 U.S.C.
1491).
• Automatic renewal clauses may
automatically renew or extend contracts
unless affirmative action is taken by the
Government. Such clauses that require
the obligation of funds prior to
appropriation violate the restrictions of
E:\FR\FM\20MRN1.SGM
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15012
Federal Register / Vol. 80, No. 54 / Friday, March 20, 2015 / Notices
the Anti-Deficiency Act, 31 U.S.C.
1341(a)(1)(B).
• Termination clauses may allow the
contractor to unilaterally terminate a
contract if the Government is alleged to
have breached the contract. Termination
clauses and other clauses that permit
substantive unilateral modification by
the contractor are not permitted.
Additionally, Government contracts are
subject to the Contract Disputes Act of
1978 (41 U.S.C. 601–613). The Contract
Disputes Act requires a certain process
for resolving disputes, including
terminations, and that the ‘‘Contractor
shall proceed diligently with
performance of this contract, pending
final resolution’’ under the terms of the
FAR Disputes clause at 52.233–1.
As a result, Industry and Government
representatives must undergo lengthy
and costly contract term negotiations in
order to avoid Commercial Supplier
Agreement terms that conflict or are
incompatible with Federal law. Both
sides may expend considerable
resources on legal counsel and
negotiations before coming to
agreement.
Moreover, the current order of
precedence contained in the commercial
item clause at FAR 52.212–4 potentially
allows commercial agreements to
supersede the terms of Federal
contracts, especially in those areas
where Federal law is implicated
indirectly. As a result, industry and
Government representatives must spend
significant time and resources tailoring
Commercial Supplier Agreements to
comply with Federal law.
mstockstill on DSK4VPTVN1PROD with NOTICES
Discussion
GSA intends to issue a class deviation
to clarify the order of precedence in the
commercial item clause by explaining
that the terms of the commercial item
clause control in the event of a conflict
with a Commercial Supplier Agreement.
The class deviation will also
implement standard terms and
conditions to minimize the need for
negotiating the terms of Commercial
Supplier Agreements on an individual
basis. The new clause will make
unenforceable any conflicting or
inconsistent Commercial Supplier
Agreement terms that are addressed in
the class deviation, so long as an
express exception is not authorized
elsewhere by Federal statute. GSA has
identified fifteen (15) points of
inconsistency with Federal law that are
addressed by this class deviation. Below
is a list of the fifteen points of
inconsistency and a summary of how
they will be addressed by the class
deviation:
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1. Definition of contracting parties:
Contract agreements are between the
commercial supplier or licensor and the
U.S. Government. Government
employees or persons acting on behalf
of the Government will not be bound in
their personal capacity by the
Commercial Supplier Agreement.
2. Contract formation: Commercial
Supplier Agreements may be integrated
into a contract, so long as the terms are
included verbatim and are not
incorporated by reference. The terms of
the deviated clause and other identified
elements will supersede any conflict
with the Commercial Supplier
Agreement. This order of precedence
will allow for the incorporation of
Commercial Supplier Agreements, with
certain clauses being stricken as
unenforceable, without the need to
individually negotiate agreements.
‘‘Click-wrap’’, ‘‘Browse-wrap’’ and other
such mechanisms that purport to bind
the end-user will not bind the
Government or any Government
authorized end-user.
3. Patent indemnity (contractor
assumes control of proceedings): Any
clause requiring that the commercial
supplier or licensor control any
litigation arising from the government’s
use of the contractor’s supplies or
services is deleted. Such representation
when the Government is a party is
reserved by statute for the U.S.
Department of Justice.
4. Automatic renewals of term-limited
agreements: Due to Anti-Deficiency Act
restrictions, automatic contract renewal
clauses are impermissible. Any such
Commercial Supplier Agreement
clauses are unenforceable.
5. Future fees or penalties: Future
fees—such as attorney fees, cost or
interest—may only be awarded against
the U.S. Government when expressly
authorized by statute (e.g. Prompt
Payment Act).
6. Taxes: Any taxes or surcharges that
will be passed along to the Government
will be governed by the terms of the
underlying contract. The cognizant
contracting officer must make a
determination of applicability whenever
such a request is made.
7. Payment terms or invoicing (late
payment): Any Commercial Supplier
Agreement terms that purport to
establish payment terms or invoicing
requirements that contradict the terms
of the Government contract will be
unenforceable. Discrepancies found
during an audit must comply with the
invoicing procedures from the
underlying contract.
8. Automatic incorporation/deemed
acceptance of third party terms: No
third party terms may be incorporated
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into the contract by reference.
Incorporation of third party terms after
the time of award may only be
performed by bilateral contract
modification with the approval of the
cognizant contracting officer.
9. State/foreign law governed
contracts: Clauses that conflict with the
sovereign immunity of the U.S.
Government cannot apply to litigation
where the U.S. Government is a
defendant because those disputes must
be heard either in U.S. District Court or
the U.S. Court of Federal Claims.
Commercial Supplier Agreement terms
that require the resolution of a dispute
in a forum other than that expressly
authorized by Federal law are deleted.
Statutes of limitation on potential
claims shall be governed by U.S.
Government law.
10. Equitable remedies, injunctions,
binding arbitration: Equitable remedies,
injunctive relief and binding arbitration
clauses may not be enforced unless
explicitly authorized by agency
guidance or statute.
11. Unilateral termination of
Commercial Supplier Agreement by
supplier: Commercial suppliers may not
unilaterally terminate or suspend a
contract unless the supplies or services
are generally withdrawn from the
commercial market. Remedy from
contractual breach by the Government
must be pursued under the Contract
Disputes Act.
12. Unilateral modification of
Commercial Supplier Agreement by
supplier: Unilateral changes of the
Commercial Supplier Agreement are
impermissible and any clause
authorizing such changes is
unenforceable.
13. Assignment of Commercial
Supplier Agreement or Government
contract by supplier: The contract,
Commercial Supplier Agreement, party
rights and party obligations may not be
assigned or delegated without express
Government approval. Payment to a
third party financial institution may still
be reassigned.
14. Confidentiality of Commercial
Supplier Agreement terms and
conditions: The content of the
Commercial Supplier Agreement and
the final contract pricing may not be
deemed confidential. The Government
may retain other marked confidential
information as required by law,
regulation or agency guidance, but will
appropriately guard such confidential
information.
15. Audits (automatic liability for
payment): Discrepancies found during
an audit must comply with the
invoicing procedures from the
underlying contract. Disputed charges
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Federal Register / Vol. 80, No. 54 / Friday, March 20, 2015 / Notices
must be resolved through the Disputes
clause. Any audits requested by the
commercial supplier or licensor will be
performed at supplier or licensor’s
expense.
This class deviation will apply to all
new awards for GSA acquisitions for
commercial supplies or services.
Existing contracts will be required to
incorporate the new terms whenever an
option period is exercised or the
contract is otherwise modified.
This effort will reduce risk by
uniformly addressing common
unacceptable Commercial Supplier
Agreement terms, facilitate efficiency
and effectiveness in the contracting
process by reducing the administrative
burden for the Government and
industry, and promote competition by
reducing barriers to industry,
particularly small businesses.
Dated: March 17, 2015.
Jeffrey A. Koses,
Senior Procurement Executive, Office of
Acquisition Policy, Office of Governmentwide Policy.
[FR Doc. 2015–06422 Filed 3–19–15; 8:45 am]
BILLING CODE 6820–61–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
National Institutes of Health
Submission for OMB Review; 30-Day
Comment Request: The Genetic
Testing Registry
Under the provisions of
section 3507(a)(1)(D) of the Paperwork
SUMMARY:
Office of Clinical Research and
Bioethics Policy, Office of Science
Policy, NIH, 6705 Rockledge Dr., Suite
750, Bethesda, MD 20892, or call nontoll-free number (301) 496–9838, or
Email your request, including your
address to: OCRBP-OSP@od.nih.gov.
Formal requests for additional plans and
instruments must be requested in
writing.
Reduction Act of 1995, the National
Institutes of Health (NIH) has submitted
to the Office of Management and Budget
(OMB) a request for review and
approval of the information collection
listed below. This proposed information
collection was previously published in
the Federal Register on November 25,
2014 (79 FR 70194), and allowed 60days for public comment. No public
comments were received. The purpose
of this notice is to allow an additional
30 days for public comment. The Office
of the Director (OD), National Institutes
of Health, may not conduct or sponsor,
and the respondent is not required to
respond to, an information collection
that has been extended, revised, or
implemented on or after October 1,
1995, unless it displays a currently valid
OMB control number.
Direct Comments to OMB: Written
comments and/or suggestions regarding
the item(s) contained in this notice,
especially regarding the estimated
public burden and associated response
time, should be directed to the: Office
of Management and Budget, Office of
Regulatory Affairs, OIRA_submission@
omb.eop.gov or by fax to 202–395–6974,
Attention: NIH Desk Officer.
DATES: Comment Due Date: Comments
regarding this information collection are
best assured of having their full effect if
received within 30-days of the date of
this publication.
FOR FURTHER INFORMATION CONTACT: To
obtain a copy of the data collection
plans and instruments or request more
information on the proposed project
contact: Ms. Sarah Carr, Acting Director,
Proposed Collection: The Genetic
Testing Registry, 0925–0651,
Reinstatment Without Change,—Office
of the Director (OD), National Institutes
of Health (NIH)
Need and Use of Information
Collection: Clinical laboratory tests are
available for more than 5,000 genetic
conditions. The Genetic Testing Registry
(GTR) provides a centralized, online
location for test developers,
manufacturers, and researchers to
voluntarily submit detailed information
about the availability and scientific
basis of their genetic tests. The GTR is
of value to clinicians by providing
information about the accuracy,
validity, and usefulness of genetic tests.
The GTR also highlights evidence gaps
where additional research is needed.
OMB approval is requested for 3
years. There are no costs to respondents
other than their time. The total
estimated annualized burden hours are
5,536.
ESTIMATED ANNUALIZED BURDEN HOURS
Number of
respondents
Number of
responses per
respondent
Average
burden per
response
(in hours)
Total annual
burden hours
Type of respondent
Form name
Laboratory Personnel Using Bulk
Submission.
Minimal Fields ..................................
190
29
18/60
1,653
Optional Fields .................................
Minimal Fields ..................................
159
116
29
29
14/60
30/60
1,076
1,682
Optional Fields .................................
97
29
24/60
1,125
Laboratory Personnel
Bulk Submission.
Not
Using
Dated: March 13, 2015.
Lawrence A. Tabak,
Deputy Director, National Institutes of Health.
mstockstill on DSK4VPTVN1PROD with NOTICES
[FR Doc. 2015–06370 Filed 3–19–15; 8:45 am]
BILLING CODE 4140–01–P
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]]>Agencies
[Federal Register Volume 80, Number 54 (Friday, March 20, 2015)]
[Notices]
[Pages 15011-15013]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-06422]
=======================================================================
-----------------------------------------------------------------------
GENERAL SERVICES ADMINISTRATION
[NOTICE-MVA-2015-01; Docket No. 2015-0002; Sequence No. 4]
Notice of a Class Deviation To Address Commercial Supplier
Agreement Terms Inconsistent With Federal Law
AGENCY: Office of Government-wide Policy, General Services
Administration.
ACTION: Request for Information (RFI).
-----------------------------------------------------------------------
SUMMARY: The Office of Acquisition Policy is requesting feedback on a
proposed class deviation to the Federal Acquisition Regulation (FAR)
and the General Services Acquisition Regulation (GSAR) to address
common Commercial Supplier Agreement terms that are inconsistent with
or create ambiguity with Federal law. This class deviation will go into
effect forty-five (45) days from the date of publication of this RFI in
the Federal Register, after considering comments received.
DATES: Comments: Interested parties should submit written comments to
the Regulatory Secretariat Division at one of the addresses shown below
on or before April 20, 2015.
ADDRESSES: Submit comments in response to Notice--MVA-2015-01 by any of
the following methods:
Regulations.gov: https://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by searching for ``Notice--
MVA-2015-01''. Select the link ``Comment Now'' that corresponds with
``Notice--MVA-2015-01'' and follow the instructions provided on the
screen. Please include your name, company name (if any), and ``Notice--
MVA-2015-01'' on your attached document.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), ATTN: Ms. Flowers/Notice--MVA-2015-01, 1800 F
Street NW., 2nd Floor, Washington, DC 20405-0001.
Instructions: Please submit comments only and cite Notice--MVA-
2015-01 in all correspondence related to this case. All comments
received will be posted without change to https://www.regulations.gov,
including any personal and/or business confidential information
provided.
FOR FURTHER INFORMATION CONTACT: Mr. James Tsujimoto, Program Analyst,
Acquisition Policy Division, at telephone 202-208-3585 or email
james.tsujimoto@gsa.gov.
SUPPLEMENTARY INFORMATION:
Background
GSA defines Commercial Supplier Agreements as terms and conditions
that are customarily offered to the public by vendors of supplies or
services that meet the definition of ``commercial item'' and are
intended to create a binding legal obligation on the end user.
Commercial Supplier Agreements are particularly common in information
technology acquisitions, including acquisitions of commercial computer
software and commercial technical data, but they may apply to any
supply or service.
Customarily, commercial item supplies and services are offered to
the public under standard agreements that may take a variety of forms,
including license agreements, terms of service (TOS), terms of sale or
purchase, and similar agreements. These customary, standard Commercial
Supplier Agreements typically contain terms and conditions that make
sense when the purchaser is a private party but are inappropriate when
the purchaser is the Federal Government.
The existence of Federally-incompatible terms in contractors'
standard Commercial Supplier Agreements has long been recognized in FAR
27.405-3(b), which is limited to the acquisition of commercial computer
software. This clause advises contracting officers to exercise caution
when accepting a contractor's terms and conditions. However, the use of
Commercial Supplier Agreements is not limited to information technology
acquisitions; Commercial Supplier Agreements have become ubiquitous in
a broad variety of contexts, from travel to telecommunications to
financial services to building maintenance systems, including purchases
below the simplified acquisition threshold.
Discrepancies between Commercial Supplier Agreements and Federal
law or the Government's needs create recurrent points of inconsistency.
Below are several examples of incompatible clauses that are commonly
found in Commercial Supplier Agreements:
Jurisdiction or venue clauses may require that disputes be
resolved in a particular state or Federal court. Such clauses conflict
with the sovereign immunity of the US Government and cannot apply to
litigation where the US Government is a defendant because those
disputes must be heard either in US District Court (28 U.S.C. 1346) or
the US Court of Federal Claims (28 U.S.C. 1491).
Automatic renewal clauses may automatically renew or
extend contracts unless affirmative action is taken by the Government.
Such clauses that require the obligation of funds prior to
appropriation violate the restrictions of
[[Page 15012]]
the Anti-Deficiency Act, 31 U.S.C. 1341(a)(1)(B).
Termination clauses may allow the contractor to
unilaterally terminate a contract if the Government is alleged to have
breached the contract. Termination clauses and other clauses that
permit substantive unilateral modification by the contractor are not
permitted. Additionally, Government contracts are subject to the
Contract Disputes Act of 1978 (41 U.S.C. 601-613). The Contract
Disputes Act requires a certain process for resolving disputes,
including terminations, and that the ``Contractor shall proceed
diligently with performance of this contract, pending final
resolution'' under the terms of the FAR Disputes clause at 52.233-1.
As a result, Industry and Government representatives must undergo
lengthy and costly contract term negotiations in order to avoid
Commercial Supplier Agreement terms that conflict or are incompatible
with Federal law. Both sides may expend considerable resources on legal
counsel and negotiations before coming to agreement.
Moreover, the current order of precedence contained in the
commercial item clause at FAR 52.212-4 potentially allows commercial
agreements to supersede the terms of Federal contracts, especially in
those areas where Federal law is implicated indirectly. As a result,
industry and Government representatives must spend significant time and
resources tailoring Commercial Supplier Agreements to comply with
Federal law.
Discussion
GSA intends to issue a class deviation to clarify the order of
precedence in the commercial item clause by explaining that the terms
of the commercial item clause control in the event of a conflict with a
Commercial Supplier Agreement.
The class deviation will also implement standard terms and
conditions to minimize the need for negotiating the terms of Commercial
Supplier Agreements on an individual basis. The new clause will make
unenforceable any conflicting or inconsistent Commercial Supplier
Agreement terms that are addressed in the class deviation, so long as
an express exception is not authorized elsewhere by Federal statute.
GSA has identified fifteen (15) points of inconsistency with Federal
law that are addressed by this class deviation. Below is a list of the
fifteen points of inconsistency and a summary of how they will be
addressed by the class deviation:
1. Definition of contracting parties: Contract agreements are
between the commercial supplier or licensor and the U.S. Government.
Government employees or persons acting on behalf of the Government will
not be bound in their personal capacity by the Commercial Supplier
Agreement.
2. Contract formation: Commercial Supplier Agreements may be
integrated into a contract, so long as the terms are included verbatim
and are not incorporated by reference. The terms of the deviated clause
and other identified elements will supersede any conflict with the
Commercial Supplier Agreement. This order of precedence will allow for
the incorporation of Commercial Supplier Agreements, with certain
clauses being stricken as unenforceable, without the need to
individually negotiate agreements. ``Click-wrap'', ``Browse-wrap'' and
other such mechanisms that purport to bind the end-user will not bind
the Government or any Government authorized end-user.
3. Patent indemnity (contractor assumes control of proceedings):
Any clause requiring that the commercial supplier or licensor control
any litigation arising from the government's use of the contractor's
supplies or services is deleted. Such representation when the
Government is a party is reserved by statute for the U.S. Department of
Justice.
4. Automatic renewals of term-limited agreements: Due to Anti-
Deficiency Act restrictions, automatic contract renewal clauses are
impermissible. Any such Commercial Supplier Agreement clauses are
unenforceable.
5. Future fees or penalties: Future fees--such as attorney fees,
cost or interest--may only be awarded against the U.S. Government when
expressly authorized by statute (e.g. Prompt Payment Act).
6. Taxes: Any taxes or surcharges that will be passed along to the
Government will be governed by the terms of the underlying contract.
The cognizant contracting officer must make a determination of
applicability whenever such a request is made.
7. Payment terms or invoicing (late payment): Any Commercial
Supplier Agreement terms that purport to establish payment terms or
invoicing requirements that contradict the terms of the Government
contract will be unenforceable. Discrepancies found during an audit
must comply with the invoicing procedures from the underlying contract.
8. Automatic incorporation/deemed acceptance of third party terms:
No third party terms may be incorporated into the contract by
reference. Incorporation of third party terms after the time of award
may only be performed by bilateral contract modification with the
approval of the cognizant contracting officer.
9. State/foreign law governed contracts: Clauses that conflict with
the sovereign immunity of the U.S. Government cannot apply to
litigation where the U.S. Government is a defendant because those
disputes must be heard either in U.S. District Court or the U.S. Court
of Federal Claims. Commercial Supplier Agreement terms that require the
resolution of a dispute in a forum other than that expressly authorized
by Federal law are deleted. Statutes of limitation on potential claims
shall be governed by U.S. Government law.
10. Equitable remedies, injunctions, binding arbitration: Equitable
remedies, injunctive relief and binding arbitration clauses may not be
enforced unless explicitly authorized by agency guidance or statute.
11. Unilateral termination of Commercial Supplier Agreement by
supplier: Commercial suppliers may not unilaterally terminate or
suspend a contract unless the supplies or services are generally
withdrawn from the commercial market. Remedy from contractual breach by
the Government must be pursued under the Contract Disputes Act.
12. Unilateral modification of Commercial Supplier Agreement by
supplier: Unilateral changes of the Commercial Supplier Agreement are
impermissible and any clause authorizing such changes is unenforceable.
13. Assignment of Commercial Supplier Agreement or Government
contract by supplier: The contract, Commercial Supplier Agreement,
party rights and party obligations may not be assigned or delegated
without express Government approval. Payment to a third party financial
institution may still be reassigned.
14. Confidentiality of Commercial Supplier Agreement terms and
conditions: The content of the Commercial Supplier Agreement and the
final contract pricing may not be deemed confidential. The Government
may retain other marked confidential information as required by law,
regulation or agency guidance, but will appropriately guard such
confidential information.
15. Audits (automatic liability for payment): Discrepancies found
during an audit must comply with the invoicing procedures from the
underlying contract. Disputed charges
[[Page 15013]]
must be resolved through the Disputes clause. Any audits requested by
the commercial supplier or licensor will be performed at supplier or
licensor's expense.
This class deviation will apply to all new awards for GSA
acquisitions for commercial supplies or services. Existing contracts
will be required to incorporate the new terms whenever an option period
is exercised or the contract is otherwise modified.
This effort will reduce risk by uniformly addressing common
unacceptable Commercial Supplier Agreement terms, facilitate efficiency
and effectiveness in the contracting process by reducing the
administrative burden for the Government and industry, and promote
competition by reducing barriers to industry, particularly small
businesses.
Dated: March 17, 2015.
Jeffrey A. Koses,
Senior Procurement Executive, Office of Acquisition Policy, Office of
Government-wide Policy.
[FR Doc. 2015-06422 Filed 3-19-15; 8:45 am]
BILLING CODE 6820-61-P
