General Services Administration Acquisition Regulation (GSAR); Federal Supply Schedule Contracting (Administrative Changes), 17030-17054 [2019-08012]
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Federal Register / Vol. 84, No. 78 / Tuesday, April 23, 2019 / Rules and Regulations
GENERAL SERVICES
ADMINISTRATION
48 CFR Parts 501, 515, 538, and 552
[Change 100; GSAR Case 2013–G502;
Docket No. GSA–GSAR–2019–0008;
Sequence No.1]
RIN 3090–AJ41
General Services Administration
Acquisition Regulation (GSAR);
Federal Supply Schedule Contracting
(Administrative Changes)
Office of Acquisition Policy,
General Services Administration.
ACTION: Final rule.
AGENCY:
The General Services
Administration (GSA) is issuing a final
rule amending the General Services
Administration Acquisition Regulation
(GSAR) Part 515, Contracting by
Negotiation, Part 538, Federal Supply
Schedule Contracting, and GSAR Part
552, Solicitation Provisions and
Contract Clauses, to clarify, update, and
incorporate existing Federal Supply
Schedule contract administration
policies and procedures.
DATES: Effective: May 23, 2019.
FOR FURTHER INFORMATION CONTACT: Ms.
Dana Bowman, General Services
Acquisition Policy Division, GSA, 202–
357–9652 or email Dana.Bowman@
gsa.gov, for clarification of content. For
information pertaining to status or
publication schedules, contact the
Regulatory Secretariat Division at 202–
501–4755. Please cite GSAR Case 2013–
G502.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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I. Background
In 2006, GSA initiated a rewrite of the
GSAM to consolidate, update, and
revise policy to fulfill statutory and
executive order requirements, meet the
needs of evolving acquisition programs
within GSA’s Federal Acquisition
Service (FAS), Public Building Service
(PBS), and other staff procurement
offices, and ensure consistency with the
FAR.
GSAR Case 2006–G507 was created to
rewrite GSAR Part 538, Federal Supply
Schedule Contracting. The proposed
rule, published in the Federal Register
at 74 FR 4596, on January 26, 2009,
received well over 100 public comments
and received considerable stakeholder
opposition. Therefore, GSA withdrew
this case (i.e., the complete rewrite of
GSAM Part 538) in favor of an iterative
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approach—opening cases with a more
limited scope to allow stakeholders to
focus on specific issues that allowed for
robust analysis and discussion as well
as increased transparency—while
expediting the rulemaking process as
much as possible.
GSAR Case 2013–G502 Federal
Supply Schedule Contracting
(Administrative Changes) 1 was opened
as one of several cases to reform the
Federal Supply Schedule (FSS) Program
and address outstanding issues. This
case is focused on incorporating noncomplex provisions and clauses,
updating administrative matters, and
restructuring the GSAR to be more
consistent with the FAR in terms of the
FSS program.
GSA’s FSS program, commonly
known as the GSA Schedules program
or Multiple Award Schedule (MAS)
program, is the Government’s most used
commercial-item purchasing channel,
accounting for approximately $34.2
billion of Federal contract awards in
fiscal year 2018 (not including the VA
Schedules).
GSA Schedules provide a convenient
and effective option for both ordering
activities and Schedule contractors.
Ordering activities enjoy simplified
ordering procedures and reduced prices,
while Schedule contractors connect
with federal business quickly and
easily. Additional features of the
Schedules program, including Blanket
Purchase Agreements (BPAs) and
Contractor Team Arrangements (CTAs),
greatly enhance the flexibility of the
program. These features offer:
• Additional price discounts for
ordering activities;
• Expanded opportunities for
contractors;
• Elimination of redundant effort,
with a single contracting vehicle
fulfilling complex or ongoing needs;
• Reductions in administrative time
and paperwork;
• Expanded business opportunities
for socioeconomic groups; and
• Help for ordering activities wishing
to reach socio-economic goals.
The Schedules Program supports
Federal Agencies’ missions by providing
access from simple commodities such as
pens and pencils to complex services
such as IT Modernization.
Authority for This Rulemaking
Pursuant to paragraph (3) of section
152 of Title 41 of the United States
1 See 79 FR 54126, dated September 10, 2014;
Extension 79 FR 64356, dated October 29, 2014.
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Code, GSA is authorized to establish
procedures for the Federal Supply
Schedules (FSS) program. FSS
procedures meet the Competition in
Contracting Act (CICA) requirement of
full and open competition as long as
participation has been open to all
responsible sources; and orders and
contracts under those procedures result
in the lowest overall cost alternative to
meet the needs of the Federal
Government.
II. Discussion of the Final Rule
GSA published a proposed rule with
a request for public comments in the
Federal Register at 79 FR 54126 on
September 10, 2014 to clarify and
update the contracting by negotiations
GSAR section and incorporate existing
Federal Supply Schedule Contracting
policies and procedures, and
corresponding provisions and clauses.
This final rule amends the GSAR at
GSAR part 515, Contracting by
Negotiation, GSAR part 538, Federal
Supply Schedule Contracting, and
corresponding provisions and clauses in
GSAR part 552, Solicitation Provisions
and Contract Clauses.
Specifically, the GSAR amendments
included in this final rule are as follows:
1. Solicitation and Contract
Structuring: GSAR 538.273 is
restructured to be more consistent with
the formation of Federal Supply
Schedule (FSS) solicitations and
contracts. The previous structure of
GSAR 538.273 was based upon whether
the FSS was single-award or multipleaward. A more practical structure
outlines where each provision or clause
shall be located in FSS solicitations and
contracts (e.g., as an addendum to FAR
clause 52.212–1 or 52.212–4).
2. New Clauses and Provisions: Thirty
(30) new FSS-specific clauses and
provisions, previously implemented
through internal GSA policy and
currently in FSS solicitations and
contracts are incorporated into GSAR
parts 538 and 552. Bringing these
clauses and provisions into the GSAR
allows for greater transparency, and
consolidates all regulations into one
area, while updating administrative
information to ensure currency and
consistency within the FSS program.
The thirty (30) new provisions/clauses,
prescriptions, and brief descriptions are
as follows:
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552.238–70 ........
Cover Page for Worldwide
Federal Supply Schedules.
552.238–71 ........
Notice of Total Small Business Set-Aside.
552.238–72 ........
Information Collection Requirements.
Introduction of New Supplies/
Services (INSS).
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552.238–74 ........
Prescription
Description
Use in all FSS solicitations.
Use Alternate I for singleaward Federal Supply
Schedules.
Use in FSS solicitations containing Special Item Numbers (SINs) that are set
aside for small business.
Use in all FSS solicitations.
Use only in FSS 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).
Use only in FSS solicitations
when non-Government employees may be utilized to
review solicitation responses.
Use in all FSS solicitations
and contracts.
Use in all FSS solicitations
and contracts except the
Department of Veterans Affairs Federal Supply Schedules.
Use only in FSS solicitations
and contracts for mailable
articles when delivery to a
U.S. Postal Service (USPS)
facility is contemplated.
Use only in FSS solicitations
and contracts when the
supply of equipment that
uses electrical current is
contemplated.
Use only in FSS solicitations
and contracts for supplies
when the need for outlining
the minimum information
and documentation required
for shipping is contemplated.
Use only in FSS solicitations
and contracts for supplies
when a VMI Program is
contemplated.
Use only in FSS solicitations
and contracts for supplies.
552.238–76 ........
Use of Non-Government Employees to Review Offers.
552.238–87 ........
Delivery Prices .......................
552.238–88 ........
GSA Advantage! ....................
552.238–89 ........
Deliveries to the U.S. Postal
Service.
552.238–90 ........
Characteristics of Electric
Current.
552.238–91 ........
Marking and Documentation
Requirements for Shipping.
552.238–92 ........
Vendor Managed Inventory
(VMI) Program.
552.238–93 ........
Order Acknowledgement .......
552.238–94 ........
Accelerated Delivery Requirements.
Use only in FSS solicitations
and contracts for supplies.
552.238–95 ........
Separate Charge for Performance Oriented Packaging
(POP).
552.238–96 ........
Separate Charge for Delivery
Within Consignee’s Premises.
Use only in FSS solicitations
and contracts for items defined as hazardous under
Federal Standard No. 313.
Use only in FSS solicitations
and contracts for supplies
when allowing Offerors to
propose separate charges
for deliveries within the
consignee’s premises.
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This provision notifies the Offeror of the industry and types
of products/services being solicited.
This provision notifies small business Offerors which Special Item Numbers (SINs) are set aside.
This provision informs Offerors that only required regulations are contained in the solicitation.
This provision notifies Offerors of the method to propose
new services or supplies not covered by the Schedule.
This provision provides notification to Offerors that non-Government employees may be utilized to review their solicitation response.
This clause ensures all parties are aware of the delivery
terms of the contract.
This clause outlines to the Contractor that it must participate
in the GSA Advantage!® online shopping service. This
clause is not applicable to the Department of Veterans Affairs.
This clause provides requirements for the delivery of mailable articles delivered direct to a USPS facility. The
clause ensures the use of the USPS to reduce unnecessary costs of shipping.
This clause requires the Contractor to provide equipment
with electrical currents suitable for the location in which
the equipment is to be used, as specified on the order.
This clause defines the responsibility of Ordering Activities
and Contractors for the marking and documentation of
shipping information.
This clause allows Contractors that commercially provide a
VMI type system to enter into similar partnerships with
customers under a Blanket Purchase Agreements.
This clause requires Contractors to acknowledge orders
which state ‘‘Order Acknowledgement Required’’ within 10
calendar days after receipt to the Ordering Activity placing
the order and contain information pertinent to the order,
including the anticipated delivery date.
This clause assists with the request of accelerated delivery
when the FSS contract delivery period does not meet the
bona fide urgent delivery requirements of an Ordering Activity.
This clause ensures both parties, Contractors and Ordering
Activities, are aware of a separate charge for preservation, packaging, packing and marking and labeling of domestic and overseas HAZMAT surface shipments.
This clause ensures both parties, Contractors and Ordering
Activities, are aware of a separate charges for deliveries
within the consignee’s premises.
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552.238–97 ........
Parts and Service ..................
Use in all FSS solicitations
and contracts.
552.238–98 ........
Clauses for Overseas Coverage.
552.238–99 ........
Delivery Prices Overseas ......
552.238–100 ......
Transshipments .....................
552.238–101 ......
Foreign Taxes and Duties .....
552.238–102 ......
English Language and U.S.
Dollar Requirements.
Use only in FSS solicitations
and contracts when overseas acquisition is contemplated.
The following clauses and
provisions shall also be inserted in full text, when applicable.
(a) 52.214–34 Submission
of Offers in the English
Language.
(b) 52.214–35 Submission
of Offers in U.S. Currency.
(c) 552.238–90 Characteristics of Electric Current.
(d) 552.238–91 Marking and
Documentation Requirements Per Shipment.
(e) 552.238–97 Parts and
Service.
(f) 552.238–99 Delivery
Prices Overseas.
(g) 552.238–100 Transshipments.
(h) 552.238–101 Foreign
Taxes and Duties.
(i) 52.247–34 FOB Destination.
(j) 52.247–38 FOB Inland
Carrier, Point of Exportation.
(k) 52.247–39 FOB Inland
Point, Country of Importation.
Use only in FSS solicitations
and contracts when overseas acquisition is contemplated.
Use in FSS solicitations and
contracts when overseas
acquisition is contemplated.
Use only in FSS solicitations
and contracts when overseas acquisition is contemplated.
Use in all FSS solicitations
and contracts.
552.238–103 ......
Electronic Commerce ............
552.238–104 ......
Dissemination of Information
by Contractor.
552.238–105 ......
Deliveries Beyond the Contractual Period—Placing of
Orders.
Interpretation of Contract Requirements.
Use only in FSS solicitations
and contracts for supplies.
552.238–107 ......
Export Traffic Release (Supplies).
552.238–108 ......
Spare Parts Kit ......................
Use in FSS solicitations and
contracts for supplies, except vehicles.
Use only in FSS solicitations
and contracts for items requiring spare part kits.
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552.238–106 ......
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Prescription
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Description
Use in all FSS solicitations
and contracts except the
Department of Veterans Affairs Federal Supply Schedules.
Use in all FSS solicitations
and contracts.
Use in all FSS solicitations
and contracts.
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This clause is used to ensure that the parts and services
(including the performance of warranty or guarantee service) submitted by Offerors (dealers/distributors) is good
for the entire contract period.
This clause ensures all applicable overseas clauses are included in the solicitation and contract.
This clause is for use for f.o.b. destination in overseas deliveries to ensure that all parties are aware of delivery
terms.
This clause states the terms and conditions for transshipments, and provides information to Contractors with
the necessary Department of Defense forms.
This clause delineates which fees, taxes and other foreign
Governmental costs are exempt/non-exempt by the U.S.
Government.
This clause is used to instruct Contractors that all documents shall be produced in the English language, including, but not limited to, price lists and catalogs.
This clause outlines the use of electronic commerce/data
interchange to conduct contract processes and procedures.
This clause provides to the Contractor the responsibility of
distributing Authorized Federal Supply Schedule Price
Lists to all authorized sales outlets.
This clause allows orders to be processed if they were received prior to the expiration of the contract.
This indicates that only written clarifications regarding interpretation of contract clauses may only be made by the
Contracting Officer or his/her designated representative.
This clause informs Contractors of the requirements for exporting items under the contract.
This clause ensures requirements for spare part kits are understood by all parties.
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No.
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552.238–109 ......
Authentication Supplies and
Services.
552.238–110 ......
Commercial Satellite Communication (COMSATCOM)
Services.
Environmental Protection
Agency Registration Requirement.
552.238–111 ......
3. Reinstated Clauses and Provisions:
Four (4) FSS-specific clauses and
provisions that were removed from the
GSAR as part of a previous General
Services Administration Acquisition
New No.
Previous No.
552.238–75 .......
552.212–73
552.238–84 .......
552.232–8
552.238–85 .......
552.238–86 .......
Description
Use in Federal Supply Schedule 70 solicitations only,
and only contracts awarded
Special Item Numbers
(SINs) associated with the
Homeland Security Presidential Directive 12
(HSPD–12).
Use only in FSS solicitations
and contracts for
COMSATCOM services.
Use only in FSS solicitations
and contracts for supplies
when items may require
registration with the Environmental Protection Agency.
This clause outlines requirements for the Homeland Security Presidential Directive 12 (HSPD–12).
This clause provides
COMSATCOM services.
minimum
requirements
for
This clause ensures items in FSC Group 68 items (insecticides, etc.) are properly registered with EPA.
Manual (GSAM) rewrite and retained by
internal GSA policy are reinstated and
given new clause numbers. The clauses
and provisions are reinstated into GSAR
Parts 538 and 552 in order to ensure
consistency and transparency. The four
(4) reinstated clauses/provisions,
prescriptions, and a brief description are
as follows:
Prescription
Description
Evaluation—Commercial
Items (Federal Supply
Schedules).
Discounts for Prompt
Payment.
Use in FSS standing solicitations.
552.232–83
Contractor’s Billing Responsibilities.
Use in all FSS solicitations and contracts.
552.211–78
Delivery Schedule ...........
Use only in FSS solicitations and contracts for
supplies.
Use in all FSS solicitations and contracts.
This provision informs Offerors that multiple awards
for commercial items offered may be made, resulting in a binding contract between parties.
This clause provides the rules governing early payment under the FSS contract (and resulting orders).
This clause provides to the Contractor the requirements of billing responsibilities, particularly those
associated with participating dealers.
This clause provides to the Offeror the requirement
to address normal commercial delivery times in
its offer.
updated to reflect current references and
practices. The ten (10) updated existing
clauses/provisions and a brief
description of the changes are as
follows:
No.
Name
Description of change
552.212–71 ........
552.238–75 ........
Contract Terms and Conditions Applicable to GSA Acquisition Commercial Items.
Identification of Electronic Office Equipment Providing Accessibility for the Handicapped.
Submission and Distribution of Authorized Federal Supply
Schedule (FSS) Price Lists.
Identification of Products that have Environmental Attributes
552.238–76 ........
Cancellation ..............................................................................
552.238–77 ........
Industrial Funding Fee and Sales Reporting ...........................
552.238–78 ........
Price Reductions ......................................................................
552.238–79 ........
Scope of Contract (Eligible Ordering Activities) ......................
552.238–80 ........
Modifications ............................................................................
552.238–81 ........
Examination of Records by GSA (Federal Supply Schedules)
Updated to remove unnecessary clauses and outdated FSS
clauses.
Prescription update to use only in FSS solicitations for electronic office equipment.
Prescription updated to use in all FSS solicitations and contracts.
Prescription updated to use only in FSS solicitations and
contracts that contemplate items with environmental attributes.
Prescription updated to use in all FSS solicitations and contracts.
Prescription updated to use in all FSS solicitations and contracts.
Prescription updated to use in all FSS solicitations and contracts.
Updated to reference the correct payment clause, FAR
52.232–36, Payment by Third Party.
Prescription updated to use in all FSS solicitations and contracts.
(i) Use Alternate I for Federal Supply Schedules that only accept eMod.
Relocated and retitled from 552.215–71, Examination of
Records by GSA (Multiple Award Schedule) as this is an
FSS-specific clause.
552.238–73 ........
552.238–74 ........
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Prescription
Name
4. Revised Existing Clauses and
Provisions: Ten (10) existing FSSspecific clauses and provisions are
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5. Technical Amendments:
Typographical errors are corrected and
minor administrative changes are made
to GSAR parts 538 and 552 (e.g.,
renumbers existing provisions and
clauses, changes ‘‘MAS’’ to ‘‘FSS’’ to be
more consistent with the FAR).
A. Summary of Significant Changes
From the Proposed Rule
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Three respondents submitted
numerous comments in response to the
proposed rule. The General Services
Administration has reviewed the
comments in the development of the
final rule. A discussion of the comments
and the changes made to the rule as a
result of these comments are addressed
in the Analysis of Public Comments
Section.
This final rule makes the following
changes from the proposed rule:
• New Clauses and Provisions: Fortythree (43) new FSS-specific clauses and
provisions were contemplated in the
proposed rule for public comment.2 The
proposed rule published incorrectly
stated this number as thirty-five (35)
and listed forty-five (45) clauses.
However, 552.238–82 (Proposed Rule),
now 552.238–89 (Final Rule), Delivery
Schedule was incorrectly included in
the ‘‘new’’ clause list rather than the
‘‘reinstated’’ clause list. In addition,
552.238–92 Examination of Records by
GSA (Federal Supply Schedules) was
incorrectly included in the ‘‘new’’
clause list rather than the ‘‘revised
existing’’ clause list. So, the correct
number was forty-three (43) ‘‘new’’ FSSspecific clauses in the proposed rule.
After taking into consideration public
comments received from the proposed
rule, thirty (30) new FSS-specific
clauses and provisions are incorporated
into GSAR parts 538 and 552 in the final
rule. The following thirteen (13) clauses
from the proposed rule are removed
from the GSAR final rule:
Æ 552.238–85 Significant Changes
Æ 552.238–88 Notice: Requests for
Explanation or Information and
Hours of Operation
Æ 552.238–91 Authorized Negotiators
Æ 552.238–102 Inspection at
Destination
Æ 552.238–106 Post-Award Samples
2 The proposed rule at 79 FR 54126 notes thirtyfive (35) new clauses and provisions in the text at
Paragraph I.2, but lists forty-five (45) new clauses
and provisions in the table. One (1) of the clauses
listed in the proposed rule table, ‘‘Delivery
Schedule’’, was actually previously part of the
GSAR and is now reinstated; this is now reflected
in Paragraph II.3 of the final rule. One (1) of the
clauses listed in the proposed rule table,
‘‘Examination of Records by GSA’’, actually existed
in the GSAR and is moved; this is now reflected in
Paragraph II.4 of the final rule.
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Æ 552.238–107 Restriction on the
Acceptance of Orders
Æ 552.238–110 Shipping Points
Æ 552.238–111 Contact for Contract
Administration
Æ 552.238–119 Federal Excise Tax
Æ 552.238–120 Guarantee
Æ 552.238–122 Imprest Funds
Æ 552.238–127 Export Traffic Release
(Vehicles)
Æ 552.238–128 Carload Shipments
• Reinstated Clauses and Provisions:
Seven (7) FSS-specific clauses and
provisions were contemplated for
reinstatement in the proposed rule for
public comment. The proposed rule
published incorrectly identified this
number as six (6), because 552.238–82
(P.R.), now 552.238–90 (F.R.) Delivery
Schedule was incorrectly included in
the list of ‘‘new’’ FSS-specific clauses
rather than the ‘‘reinstated’’ clauses.
After taking into consideration public
comments received from the proposed
rule, four (4) FSS-specific clauses and
provisions are reinstated into GSAR
parts 538 and 552 in the final rule. The
following three (3) clauses from the
proposed rule are removed from the
GSAR final rule:
Æ 552.238–89 Contractor’s Remittance
(Payment) Address
Æ 552.238–97 Payment by Credit Card
Æ 552.238–98 Warranty
• Revised Existing Clauses and
Provisions: Nine (9) existing clauses and
provisions were contemplated for
revision in the proposed rule for public
comment. The proposed rule published
incorrectly identified this number as
seven (7) clauses. However, GSAR
clause 552.238–94 Examination of
Records by GSA (Federal Supply
Schedules) was incorrectly included in
the list of ‘‘new’’ FSS-specific clauses
rather than the ‘‘revised existing’’
clauses. In addition, GSAR clause
552.238–78 Scope of Contract (Eligible
Ordering Activities) is revised to replace
the reference to GSAR clause 552.232–
79 Payment by Credit Card, which is
redundant to FAR clause 52.232–36
Payment by Third Party, and is now
included in the list of ‘‘revised existing’’
clauses. So, the correct number is nine
(9) ‘‘revised existing’’ FSS-specific
clauses from the proposed rule. After
reviewing the public comments and
reflecting on the content, ten (10)
revised existing FSS-specific provisions
and clauses are incorporated into GSAR
parts 538 and 552 in the final rule. The
following one (1) GSAR clause is added
to the GSAR final rule because it
includes references to GSAR clauses
affected by this case and is amended to
reflect such.
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Æ 552.212–71 Contract Terms and
Conditions Applicable to GSA
Acquisition of Commercial Items
B. Analysis of Public Comments
GSA received numerous comments
from three respondents in response to
the proposed rule.3 All comments filed
were considered. A discussion of the
comments and the changes made to the
final rule as a result of those comments
is provided as follows:
The comments received covered
several points and topics. In order to
provide clarification and to better
respond to the issues raised, the
respondents’ comments are organized
into the following categories: (1) General
comments regarding the overall rule; (2)
Comments on specific provisions and
clauses in the rule; (3) Comments
regarding the Paperwork Reduction Act
and Regulatory Flexibility Act; and (4)
Comments outside the scope of the rule.
1. General Comments
The following general comments were
received in response to the proposed
rule:
Respondent: There is value in GSA
maintaining a system of Acquisition and
Instruction Letters to the GSAR as this
is a mechanism to provide transparency.
GSA Response: GSA will continue to
maintain a system of Acquisition Letters
and Instructional Letters to supplement
the GSAR. However, the goal is to
implement such policy letters into the
GSAM/GSAR for transparency and
policy guidance. No changes were made
to the final rule as a result of this
comment.
Respondent: GSA should initiate a
Federal Acquisition Regulation (FAR)
case to delete all references to ‘‘Federal
Supply Schedule (FSS)’’ and replace
with the term ‘‘GSA Multiple Award
Schedule (MAS)’’ or ‘‘GSA Schedule.’’
GSA Response: ‘‘Federal Supply
Schedule’’ is being incorporated in the
GSAR to achieve consistency with the
FAR, which does not frequently use the
term ‘‘Multiple Award Schedule
(MAS).’’ Until MAS is changed in the
FAR, the GSAR will use the term
Federal Supply Schedule.
Respondent: GSA has not performed a
detailed analysis of nor obtained a
baseline understanding of how the
proposed policies were historically
administered and implemented across
all Schedules and the GSA FSS
contracting officer community.
GSA Response: GSA has performed an
in-depth analysis of the clauses
proposed in this rule and has
3 See GSAR Case 2013–G502; Docket 2014–0009;
Sequence 1 [79 FR 54125 (September 10, 2014)].
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determined that the clauses are still
used in FSS contracts. Adding them to
the GSAR increases clarity for FSS
contracting officers and contractors to
understand when each clause should be
used. However, based on comments
received in response to the proposed
rule, some clauses are revised to address
the specific comments related to
outdated policies. No changes were
made to the final rule as a result of this
comment.
Respondent: GSA should reissue the
proposed rule, covering only clauses
currently included in all GSA Schedule
contracts and which are being
incorporated into the GSAR without
change.
GSA Response: This rule only
incorporates clauses currently in use by
the FSS program through internal
agency policy (e.g., acquisition letters).
With the exception of minor
administrative edits, different numbers,
and slightly different names to improve
clarity, the substances of the clauses are
the same as those currently in FSS
contracts and are being incorporated
into the GSAR without change.
Respondent: Additional time should
be allocated to interested parties to
comment on the proposed language,
discuss specific issues with each of the
legacy policies, and the implications on
current operations.
GSA Response: GSA extended the
comment period to provide additional
time for interested parties to provide
comments (See 79 FR 64356).
Respondent: The respondent
requested clarity on the number of new
FSS-specific clauses currently in FSS
solicitations that will be incorporated
into the GSAR.
GSA Response: The final rule
incorporates 33 new FSS-specific
clauses.
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2. Comments on Specific Provisions and
Clauses
GSAR Text Amended as a Result of
Public Comments
Respondent: The proposed rule adds
GSAR clause Evaluation—Commercial
Items including an alternate.
A clause entitled Evaluation—
Commercial Items (Multiple Award
Schedule (552.212–73) has been in the
MAS contract since 1997.
Alternate I, however, is new and a
significant change to the way resellers’
offers are now evaluated. Further, the
provisions of the clause are inconsistent
with MAS contracting policy and
procedures. Alternate I is prescribed for
use in non-standing Schedules. At a
minimum the rule should explain what
a non-standing schedule is. It is not a
concept currently in use.
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GSA Response: Concur. The alternate
version of the provision is removed
from the GSAR text final rule.
Additionally, instructions for a singleaward Federal Supply Schedule which
has a beginning and end date, and also
known as a non-standing solicitation,
are included in the new GSAR provision
Cover Page for Worldwide Federal
Supply Schedules, which instructs
contracting officers to insert a beginning
and end date for non-standing
solicitations.
Respondent: GSAR clause Notice
Request for Explanations or Information
and Hours of Operation appears
duplicative and/or unnecessary.
Information for offerors to submit
questions is already included in the SF
1449.
GSA Response: Concur. This clause is
duplicative of the Standard Form 1449
and is therefore deleted from the GSAR
text of the final rule.
Respondent: What is the purpose of
including a unique inspection clause,
such as the proposed GSAR clause
Inspection, in MAS contracts? The
commercial item clause has an
inspection provision and an alternate
for use in service contracts.
GSA Response: Concur. This clause
was previously used specifically for
stock and special order contracts and
does not belong in GSAR part 538. The
clause is deleted from the GSAR text
final rule.
Respondent: The following GSAR
clauses are unique to an individual
procurement. GSA should consider
removing them from the GSAR and
including them in a document or
database that is easier to change to keep
pace with federal and industry changes.
A. Post-award Samples prescribes a
samples clause applicable only to
carpet.
B. Export Traffic Release (Vehicles)
prescribes a clause applicable only to
vehicles.
C. Restriction on the Acceptance of
Orders prescribes a clause restricting the
receipt of orders from Navy ships that
is only applicable to copiers, supplies
and services.
D. Federal Excise Taxes prescribes an
Excise Tax applicable only to tires and
tubes.
E. Carload Shipments prescribes a
clause applicable only in contracts for
vehicles.
GSA Response: Concur. The
prescriptions and associated clauses are
deleted from the GSAR text final rule.
Respondent: GSA’s proposed clause
Contractor’s Remittance (Payment)
Address provision appears to be
duplicative or in conflict with FAR
12.303 which requires the remittance
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address be addressed in Block 18B of
SF1449.
GSA Response: Concur. This clause is
deleted from the GSAR text of the final
rule.
Respondent: Recommend GSA review
FAR 32.1108 as it applies to GSA’s
proposed GSAR clause Payment by
Credit Card and the ‘‘third party’’
payment clause to ensure the proposed
clause is not inconsistent with or in
conflict with FAR.
GSA Response: Concur. The proposed
GSAR clause Payment by Credit Card is
redundant to FAR clause 52.232–36 and
is removed from the GSAR text final
rule. Additionally, GSAR clause Scope
of Contract (Eligible Ordering Activities)
is amended as a result of this comment.
Respondent: GSAR clauses
Performance Oriented Packaging; Parts
and Service; and Spare Parts, seem
impracticable to negotiate at the
schedule contract level. GSA should
consider deleting these clauses from the
GSAR or including instructions for
implementing the provisions at the task
order level.
GSA Response: Concur. The clauses
are maintained at the contract level, but
are revised to require submission of the
required information at the task order
level. GSAR text is amended as a result
of this comment.
Respondent: GSAR clause Authorized
Negotiators appears to be duplicative of
FAR 52.203–2 provision which is
mandatory for all FSS contracts. This
clause and GSAR clause Contact for
Contract Administration should use a
designated URL to revise POC
information and feed this information to
associated contract systems.
GSA Response: Both clauses are
removed from the GSAR text final rule.
The agency will take this suggestion
into consideration when updating
applicable policy in the future.
Respondent: Vendors frequently use
multiple carriers for shipments. It is
therefore not feasible to specify a
specific carrier at the Schedule contract
level as required in GSAR clause
Shipping Points.
GSA Response: Concur. This clause is
removed from the GSAR text final rule.
Respondent: GSA should insert a
statement at the end of GSAR clause
Significant Changes that prior to
refreshing a solicitation to incorporate
significant changes, existing contractors
should be given no less than 60 days to
review and comment or implement the
provision.
GSA Response: This clause is
removed from the GSAR text final rule.
FAS provides offerors with a 30-day
notice when a solicitation is amended
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from a previous version to a new
version.
Respondent: The GSAR clause
Guarantee is applicable only to major
appliances. GSA should consider going
to standard commercial warranty in all
MAS schedules as provided for in the
proposed Warranty clause and FAR
clause 52.212–4 Contract Terms and
Conditions—Commercial Items.
GSA Response: Concur. This clause is
removed from the GSAR text final rule.
The standard commercial warranty
applies to all FSS contracts.
Respondent: GSA’s proposed clause
Warranty appears to be duplicative or in
conflict with FAR 52.212–4(o) clause.
Also, COs are required to make a
determination (D&F) in the Acquisition
Plan IAW FAR 46.703 prior to including
a warranty clause.
GSA Response: Concur. This clause is
removed from the GSAR text final rule.
The standard commercial warranty
applies to all FSS contracts.
Respondent: Recommend GSA delete
proposed GSAR clause Imprest Funds
(Petty Cash) since the use of imprest
funds are established by individual
agencies. Also FAR 13.305–3 establishes
Conditions for Use of Imprest Funds
including a limit of $500.
GSA Response: Concur. This clause is
removed from the GSAR text final rule.
GSAR Text not Amended as a Result of
Public Comments
Respondent: GSAR clause
Evaluation—Commercial Items (Federal
Supply Schedules) appears to be
duplicative and/or in conflict with FAR.
‘‘Multiple awards’’ and basis of awards
are already addressed under FAR
52.212–1(g) and (h). Also the phrase ‘‘at
the lowest overall cost’’ implies that
there is a head-to-head price
competition that is not applicable to
schedule offers. Also paragraph (b)
appears to duplicate FAR 52.212–2(c).
Withdrawals are addressed under FAR
52.212–1.
GSA Response: As stated above,
Alternate I of GSAR provision
Evaluation—Commercial Items (Federal
Supply Schedules) is deleted from the
GSAR text of the final rule. However,
the purpose of the basic provision is not
duplicative and does not conflict with
the FAR provision. The FAR provision
the respondent cites, 52.212–1, is
intended to provide instructions to
offerors, whereas GSAR provision
Evaluation—Commercial Items is
intended to supplement FAR provision
52.212–2.
Respondent: Should the proposed
GSAR clause Vendor Managed
Inventory be included in all
solicitations? This clause typically
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applies only in Schedule 51V and
perhaps Schedule 75.
GSA Response: This clause is not
prescribed for all solicitations. It is only
included in solicitations and contracts
for supplies when a VMI Program is
contemplated.
Respondent: Delivery prices and
terms are a matter of FSS contract
negotiations, which should be based on
a contractor’s commercial practices.
Mandating specific delivery terms and
pricing, such as GSAR clauses Delivery
Prices Overseas and Delivery Prices, will
result in schedule contractors having to
deviate from their standard commercial
practices. Customization of these terms
to meet GSA specific requirements
could necessitate wholesale changes to
contractor shipping and delivery
processes.
GSA Response: GSAR clauses
Delivery Prices Overseas and Delivery
Prices do not state specific delivery
terms or pricing. The clauses require
contractors to notify the Government if
they cannot deliver within the specified
locations agreed to up-front. Also, the
clauses are essential to FSS contracts
and will ensure a consistent basis for
delivery terms across the FSS program.
Respondent: The respondent listed a
number of provisions and clauses that
were not included in the proposed rule,
asking if the clauses not included in this
rule would be deleted entirely or
published for comments and an IRFA
analysis conducted to determine the
costs and economic impact on small
businesses.
GSA Response: The absence of
existing provisions and clauses in the
final rule does not necessarily mean
they are being deleted from FSS
solicitations. Any attempt to incorporate
new provisions and clauses will be
addressed in a separate GSAR case and
an IRFA analysis will be conducted at
such time. GSA performed an in-depth
analysis of all FSS provisions and
clauses and after careful consideration
decided to only include the most-used,
non-complex clauses in this GSAR case.
Respondent: Is there any plan by FAS
to ensure streamlined solicitations are
in compliance with FAR 12.603 for
Commercial Items?
GSA Response: This case streamlines
the solicitation process and ensures the
appropriate terms of the FAR
commercial items requirements are
incorporated into FSS solicitations and
contracts. Also, FSS contracts already
include FAR clause 52.212–5 and
designate the appropriate clauses and
provisions.
Respondent: There are already FAR
provisions/clauses to address ‘‘English
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language’’ and U.S. ‘‘dollar’’
requirements.
GSA Response: The ‘‘English
language’’ and U.S. ‘‘dollar’’
requirements are included in the
instructions for competitive acquisitions
(FAR clause 52.215–1). FSS uses
commercial item acquisition
instructions (52.212–1) and therefore
must specify this requirement as a
separate clause.
Respondent: GSA’s proposed GSAR
clause Contractor’s Billing
Responsibilities appears to be in conflict
with FAR. How are dealers permitted to
bill ordering activities if payments are
tied to the contractor’s EFT in SAM?
GSA Response: The FAR does not
currently provide coverage for the
contractor’s relationship with their
participating dealers. The terms of EFT,
as it relates to the SAM registration, are
covered by FAR clause 52.204–7 and
only apply to the prime contractor
relationship.
Respondent: GSA’s proposed clause
Deliveries Beyond the Contractual
Period—Placing of Orders appears to be
duplicative or inconsistent with FAR
52.216–22(d). The prescription calls for
use in all FSS solicitations and contracts
for supplies. However, the clause itself
says in accordance with clause Scope of
Contract (Eligible Ordering Activities)
which only applies to ‘‘solicitations and
contracts which contain products and
services determined by the Secretary of
Homeland Security to facilitate recovery
from major disasters, terrorism, or
nuclear, biological, chemical, or
radiological attack.’’ So there appears to
be inconsistency here. Also which
products/services has DHS determined
are approved for used by ’eligible
ordering activities’’? In other words,
which solicitations are COs supposed to
include the Scope of Contract (Eligible
Ordering Activities) clause? How or
when is that determination to be made?
GSA Response: GSAR clause
Deliveries Beyond the Contractual
Period—Placing Orders is not
inconsistent or duplicative of FAR
52.216–22(d). This clause supplements
the FAR by providing Contracting
Officers with specific instructions for
such situations.
Subpart 538.7004 is revised in GSAR
case 2010–G511 Purchasing by NonFederal Entities, 81 FR 36425 effective
July 6, 2016, to state ‘‘The contracting
officer shall insert the clause, Scope of
Contract (Eligible Ordering Activities),
in solicitations and contracts for all
Federal Supply Schedules.’’
In December 2006, DHS Memo 06–
11884, stipulated that all goods and
services available on GSA Federal
Supply Schedules qualified as goods
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and services to be used to facilitate
recovery from a major disaster declared
by the President under the Robert T
Stafford Disaster Relief and Emergency
Act, or to facilitate recovery from
terrorism or nuclear, biological,
chemical, or radiological attack. The
memo was signed by the then Secretary
of Homeland Security Michael Chertoff.
3. Comments on Paperwork Reduction
Act and Regulatory Flexibility Act
Respondent: Please address several
collections of information, mandated for
submittal in all FSS solicitations, which
do not appear to be listed in OMB’s
current Inventory of Approved
Information Collections on reginfo.gov
as part of the IRFA analysis.
GSA Response: The IRFA describes
the impact of the proposed rule on small
entities. It does not break the clauses
down individually. GSAR case 2013–
G502, which incorporates a number of
provisions and clauses currently in use
in FSS solicitations and contracts,
includes an IRFA that took into
consideration all of the applicable
clauses and provisions that may impact
small entities. The requirements
described in this comment are not part
of the provisions and clauses on which
this rule seeks feedback. The collection
requirements included in this comment
are included in OMB Control 3090–
0163. No changes were made to the rule
as a result of this comment.
Respondent: The methodology for
estimating Paperwork Burdens is flawed
resulting in a significant
underestimation of the burden imposed
by the rule.
GSA Response: GSA has outlined its
methodology for calculating the burden
estimates in the information collection
supporting statement. Since no specific
information on how the methodology is
flawed was provided, no changes were
made to the rule as a result of this
comment.
Respondent: Clarify what information
collection requirements are being
referred to in GSAR clause Information
Collection Requirements and comment
on whether this provision would be
accurate in all FSS solicitations as
proposed.
GSA Response: The information
collection associated with this clause,
OMB control number 3090–0163, is for
information specific to a contract or
contracting action, not required by
regulation. The supporting statement for
this information collection notes it is
‘‘associated with GSA’s information
collection requirements contained in
solicitations issued in accordance with
the Uniform Contract Format under FAR
Part 14, Sealed Bidding (see GSAR
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514.201–1); FAR Part 15, Contracting by
Negotiation (see GSAR 515.204–1); and
solicitations under FAR Part 12,
Acquisition of Commercial Items, when
issued in accordance with the policy
and procedures of FAR Part 14 and FAR
Part 15 (see GSAR 512.301). This
includes information collection
requirements found in GSA Federal
Supply Schedule (FSS) solicitations.’’
4. Comments Outside the Scope of the
Rule
Respondent: There is no GSAR clause
that mandates contractors be subjected
routinely to Contractor Assistance Visits
(CAV). I recommend GSA create a
clause to indicate it is mandatory,
conduct the IRFA analysis of cost
burden and impact on small businesses,
and the CAV requirements.
GSA Response: This suggestion is
outside the scope of the current rule as
this rule focuses on publishing noncomplex provisions and clauses,
updating administrative matters, and
restructuring the GSAR to be more
consistent with the FAR in terms of the
FSS program. Contractor Assessments
are conducted under GSAR clause
Examination of Records by GSA
(Federal Supply Schedules). GSA
examines the cost burden and impact of
CAVs on vendors in the PRA of the
GSAR Examination of Records clause.
Respondent: There are significant
clauses covered by the rule that should
be the subject of a separate rule-making,
such as the Price Reduction clause.
Including such provisions in this
massive collection of clauses does not
offer the opportunity to propose changes
in this important area.
GSA Response: The Price Reductions
clause is not being changed as a result
of this rule. Comments on the substance
of this clause are considered outside the
scope of this rule. No changes were
made to the rule as a result of this
comment.
Respondent: The current GSAR does
not contain the proposed GSAR Clause
Discounts for Prompt Payment
referenced in the proposed rule. The
proposed clause should be included for
public comment in a subsequent
rulemaking. The clause appears
complicated, and its purpose is not
clear. Prompt payment discounts should
be disclosed in the CSPF. Whether the
contractor offers them to the
government, or the contracting officer
accepts them, should be subject to
negotiation. The Government can advise
its contracting staff of factors to consider
without adding another clause to the
contract.
GSA Response: Clause Discounts for
Prompt Payment (Federal Supply
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17037
Schedules) was previously included in
the GSAR at 552.232–8. The clause is
unchanged from the previous version
and is now reinstated under 538.273
and 552.238–84. No changes were made
to the rule as a result of this comment.
Respondent: Proposed GSAR
prescription 538.273(d) directs use of
the clause Submission and Distribution
of Authorized Federal Supply Schedule
(FSS) Price Lists, which requires
distribution of a paper price list. This is
an opportunity for GSA to eliminate a
requirement in light of the extensive
electronic reporting required of
contractors.
GSA Response: GSAR clause
Submission and Distribution of
Authorized Federal Supply Schedule
(FSS) Price Lists is not being revised by
this rule; therefore, this comment is
outside the scope of this case. No
changes were made to the rule as a
result of this comment.
Respondent: The text of GSAR clause
Cancellation, which ‘‘provides
instructions to the Offeror on canceling
its FSS contracts,’’ should be corrected
to reflect that the clause is intended for
use by contractors only. Additional text
in the clause, which indicates that the
Government will not reimburse the
minimum guarantee if the contractor
elects to cancel the contract, violates
FAR 16.501–2(b)(3) that the
Government’s ‘‘obligation’’ in IDIQ
contracts is ‘‘to the minimum quantity
specified in the contract’’.
GSA Response: The text of the clause
questioned is not being revised;
therefore, the comments are not within
the scope of this case. However, GSA
will take the comments into
consideration for potentially addressing
in a separate case. No changes were
made to the rule as a result of this
comment.
Respondent: GSA’s Examination of
Records by GSA (Federal Supply
Schedules) clause, appears to be in
conflict with FAR 52.212–4 Alternate I’s
‘‘access to records,’’ which is limited to
service contracts and restricts access to
timecards to verify labor hours charged
and, in the case of a cost-reimbursable
T&M contract, invoices to certify
material costs. Also, recommend
addressing the ‘‘Report Card’’ by COs
into CPARs and the cost to the
Government for the IOAs travel to and
preparation for visits with contractors.
GSA Response: The text of the clause
questioned is not being revised;
therefore, the comments are not within
the scope of this case. However, GSA
will take the comments into
consideration for potentially addressing
in a separate case. No changes were
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made to the rule as a result of this
comment.
III. Executive Orders 12866 and 13563
Executive Orders (E.O.) 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. This is not a significant
regulatory action and, therefore, was not
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
IV. Executive Order 13771
This final rule is not subject to E.O.
13771, because this rule is not a
significant regulatory action under E.O.
12866.
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V. Regulatory Flexibility Act
This final rule will not 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 rule will incorporate a
number of provisions and clauses that
are currently in use in FSS solicitations
and contracts and most contractors are
familiar with and are currently
complying with these practices.
Although this rule does not have a
significant impact on a substantial
number of small entities, GSA prepared
an Initial Regulatory Flexibility
Analysis (IRFA) in conjunction with the
proposed rule. As a result, GSA has also
prepared a Final Regulatory Flexibility
Analysis (FRFA) consistent with the
Regulatory Flexibility Act, 5 U.S.C. 601,
et seq.
The FRFA is summarized as follows:
This FRFA has been prepared consistent
with the criteria of 5 U.S.C. 604.
There are approximately 14,674 4 FSS
contracts that are affected by this change. Of
these, approximately eighty percent (11,739)
of FSS contracts are held by small
businesses. The rule is unlikely to affect
small businesses awarded GSA FSS contracts
as it implements a number of provisions and
clauses currently in use in FSS solicitations
and contracts, yet not vetted via public
comment. The information collected is used
by FAS to evaluate vendors’ offers, ordering
activities when placing orders against the
4 FY18
Active Schedule contract holders.
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contract, and other FSS vendors to conduct
market research when submitting proposals.
Therefore, this rule does not pose any new
projected reporting, recordkeeping, or
additional compliance requirements.
Bringing these regulations into the GSAR
consolidates all regulations into one area,
allowing for any future changes to receive
public comment.
There are a total of 31 Schedules, with 14
possessing an array of Special Item Numbers
(SINs) set-aside for small businesses. Overall,
small businesses have benefited from GSA
providing access to the Federal marketplace
via the Pre-award phase (Pathway to
Success), the Post-award phase (New
Contractor Orientation), and Contractor
Assessments. FSS contracts are negotiated as
volume purchase agreements, with generally
very favorable pricing. The ability of small
businesses to receive awards under the FSS
Program has enabled them to grow in the
Federal marketplace as well as realize
significant cost savings.
There were no comments filed by the
Chief Counsel for Advocacy of the Small
Business Administration in response to
the rule. The Regulatory Secretariat will
submit 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.
VI. Paperwork Reduction Act
The Paperwork Reduction Act
(44 U.S.C. chapter 35) applies. The rule
implements a number of provisions and
clauses currently in use in FSS
solicitations and contracts that contain
information collection requirements.
The requirements are not new, but have
not previously been approved by OMB.
The information collected is used by
FAS to evaluate vendors’ offers,
ordering activities when placing orders
against the contract, and other FSS
vendors to conduct market research
when submitting proposals.
The annual total public reporting
burden for this collection of information
is estimated to be 38,674 total hours
($1,819,998.44), including the time for
reviewing instructions, searching
existing data sources, gathering and
maintaining the data needed, and
completing and reviewing the collection
of information. Annual reporting
burdens include the estimated
respondents with one (1) submission
per respondent multiplied by
preparation hours per response to get
the total response burden hours. The
estimated cost of $47.06 ($34.54 +
$12.52) per hour is applied to the
burden hours based on the task being
accomplished by mid-level contractor
personnel equivalent to a GS–12, Step 5
salary (Base Pay and Rest of U.S.
Locality Pay) (Salary Table 2018–GS,
Effective January 2018), with fringe of
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36.25% (OMB Memo M–08–13). The
estimated burden to the public for the
below clauses are as follows:
The reinstated GSAR clause 552.238–
84 Discounts for Prompt Payment
requires the offeror to provide the
Government a discount for early
payment, if applicable.
Respondents: 14,674.
Responses per respondent: 1.
Total annual responses: 14,674.
Preparation hours per response: 1.0 (1 hr.).
Total response burden hours: 14,674.
Cost per hour: $47.06
Estimated cost burden to the public:
$690,558.44
The new GSAR clause 552.238–87
Delivery Prices requires the offeror to
identify the intended geographic area(s)/
countries/zones that are to be covered.
Respondents: 8,000.
Responses per respondent: 1.
Total annual responses: 8,000.
Preparation hours per response: .50 (30
minutes).
Total response burden hours: 4,000.
Cost per hour: $47.06
Estimated cost burden to the public:
$188,240.00
The new GSAR clause 552.238–95
Separate Charge for Performance
Oriented Packaging requires the offeror
to list any separate charge for
preservation, packaging, packing and
marking, and labeling of domestic and
overseas HAZMAT surface shipments.
Respondents: 8,000.
Responses per respondent: 1.
Total annual responses: 8,000.
Preparation hours per response: .50 (30
minutes).
Total response burden hours: 4,000.
Cost per hour: $47.06.
Estimated cost burden to the public:
$188,240.00.
The new GSAR clause 552.238–96
Separate Charge for Delivery within
Consignee’s Premises requires the
offeror to list any separate cost for
shipping when the delivery is within
the consignee’s premises (inclusive of
items that are comparable in size and
weight).
Respondents: 8,000.
Responses per respondent: 1.
Total annual responses: 8,000.
Preparation hours per response: .50(30
minutes).
Total response burden hours: 4,000.
Cost per hour: $47.06.
Estimated cost burden to the public:
$188,240.00.
The new GSAR clause 552.238–97
Parts and Service requires the offeror to
include in the price list, the names and
addresses of all supply and service
points maintained in the geographic
area in which the offeror will perform,
whether or not a complete stock of
repair parts for items offered is carried
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mail at 1800 F Street NW, Washington,
DC 20405, or by phone at 202–501–
4755. Please cite OMB Control Number
3090–0303, (GSAR) Administrative
Changes; GSAR Case 2013–G502, in all
correspondence.
at that point, and whether or not
mechanical service is available.
Respondents: 8,000.
Responses per respondent: 1.
Total annual responses: 8,000.
Preparation hours per response: .50 (30
minutes).
Total response burden hours: 4,000.
Cost per hour: $47.06.
Estimated cost burden to the public:
$188,240.00.
List of Subjects in 48 CFR Parts 501,
515, 538, and 552
For the reasons described in the
preamble, GSA amends 48 CFR parts
501, 515, 538, and 552 as set forth
below:
■ 1. The authority citation for 48 CFR
parts 501, 515, 538, and 552 continues
to read as follows:
Authority: 40 U.S.C. 121(c).
The new GSAR clause 552.238–111
Environmental Protection Agency
Registration Requirement requires the
offeror to list the manufacturer’s and/or
distributor’s name and EPA Registration
Number for each item requiring
registration with the EPA.
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Respondents: 8,000.
Responses per respondent: 1.
Total annual responses: 8,000.
Preparation hours per response: .50 (30
minutes).
Total response burden hours: 4,000.
Cost per hour: $47.06.
Estimated cost burden to the public:
$188,240.00.
The reinstated GSAR clause 552.238–
85 Contractor’s Billing Responsibilities
contains a recordkeeping requirement
that is subject to the Paperwork
Reduction Act (44 U.S.C. 3501, et seq.).
The clause provides for the contractor to
require all dealers participating in the
performance of the contract to agree to
maintain certain records on sales made
under the contract on behalf of the
contractor. However, it does not add
burden to what is already estimated for
GSAR clause 552.238–80 Industrial
Funding Fee and Sales Reporting under
OMB Control Number 3090–0121
Industrial Funding Fee and Sales
Reporting.
GSA solicited public comments on
this information collection requirement
at the proposed rule stage. In response,
three public comments were received
and are addressed in Section B. Analysis
of Public Comments. GSA will submit to
OMB a request to review and approve
this new information collection
requirement. For a copy of the
information collection documents,
contact the Regulatory Secretariat by
18:59 Apr 22, 2019
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*
Jeffrey Birch,
Acting Senior Procurement Executive, Office
of Acquisition Policy, Office of Governmentwide Policy.
Respondents: 8,000.
Responses per respondent: 1.
Total annual responses: 8,000.
Preparation hours per response: .50 (30
minutes).
Total response burden hours: 4,000.
Cost per hour: $47.06.
Estimated cost burden to the public:
$188,240.00.
VerDate Sep<11>2014
552.238–87 ...........................
552.238–95 ...........................
552.238–96 ...........................
552.238–97 ...........................
552.238–99 ...........................
552.238–111 .........................
Government procurement.
The new GSAR clause 552.238–99
Delivery Prices Overseas requires the
offeror to identify the intended
geographic area(s)/countries/zones
which are to be covered.
PART 501—GENERAL SERVICES
ADMINISTRATION ACQUISITION
REGULATION SYSTEM
2. Amend section 501.106 in the table
by—
■ a. Revising the entry for
‘‘538.273(a)(1)’’ to read ‘‘538.273’’ and
revising the OMB control number;
■ b. Removing the entries for
‘‘538.273(a)(3)’’ and ‘‘538.273(b)(1)’’;
■ c. Revising the GSAR references
‘‘552.238–70’’, ‘‘552.238–72’’, 552.238–
74’’, and ‘‘552.238–81’’ to read
‘‘552.238–73’’, ‘‘552.238–78’’, ‘‘552.238–
80’’, and ‘‘552.238–82’’, respectively;
■ d. Adding in numerical sequence
entries for ‘‘552.238–84’’, ‘‘552.238–85’’,
‘‘552.238–87’’, ‘‘552.238–95’’, ‘‘552.238–
95’’, ‘‘552.238–97’’, ‘‘552.238–99’’, and
‘‘552.238–111’’.
The revision and additions read as
follows:
■
501.106 OMB approval under the
Paperwork Reduction Act.
OMB control
No.
GSAR reference
*
*
*
3090–0250
3090–0262
3090–0121
3090–0303
3090–0306
*
552.238–73
552.238–78
552.238–80
*
*
3090–0250
3090–0262
3090–0121
3090–0306
3090–0302
3090–0303
3090–0121
3090–0306
*
*
...........................
...........................
...........................
552.238–82 ...........................
552.238–84 ...........................
552.238–85 ...........................
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*
3090–0303
3090–0303
3090–0303
3090–0303
3090–0303
3090–0303
*
*
PART 515—CONTRACTING BY
NEGOTIATION
515.209–70
[Amended]
3. Amend section 515.209–70 by
removing the subheading ‘‘Clause for
Multiple Award Schedules’’ and
paragraphs (c) and (d).
■
515.408
[Amended]
4. Amend section 515.408 by—
a. Removing from paragraphs (a)(2),
(b) introductory text, and (c)
introductory text ‘‘basic clause 552.238–
74’’ and adding ‘‘basic clause 552.238–
80’’ in its place;
■ b. Removing from paragraph (c) Figure
515.4 ‘‘clause at 552.238–75’’ and
adding ‘‘clause at 552.238–81’’ in its
place; and
■ c. Removing from paragraph (d) ‘‘basic
clause 552.238–74’’ and adding ‘‘basic
clause 552.238–80’’ in its place.
■
■
PART 538—FEDERAL SUPPLY
SCHEDULE CONTRACTING
5. Amend section 538.270 by revising
the section heading to read as follows:
■
538.270 Evaluation of Federal Supply
Schedule (FSS) offers.
*
*
*
*
*
6. Amend section 538.271 by—
a. Revising the section heading;
b. Removing from paragraph (a) ‘‘MAS
awards’’ and adding ‘‘FSS awards’’ in its
place; and
■ c. Removing from paragraph (b) ‘‘MAS
contract’’ and adding ‘‘FSS contract’’ in
its place.
The revision reads as follows:
■
■
■
538.271
*
*
*
538.273 .................................
OMB control
No.
GSAR reference
FSS contract awards.
*
*
*
*
*
■ 7. Amend 538.272 by—
■ a. Revising the section heading;
■ b. Removing from paragraph (a) ‘‘basic
clause 552.238–74’’ and adding ‘‘basic
clause 552.238–80’’ in its place; and
■ c. Removing from paragraph (b)
‘‘Alternate I of 552.238–75’’ and adding
‘‘Alternate I of 552.238–81’’ in its place.
The revision reads as follows:
538.272
FSS price reductions.
*
*
*
*
*
■ 8. Revise section 538.273 to read as
follows:
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538.273 FSS solicitation provisions and
contract clauses.
(a) As prescribed in this paragraph,
insert the following provisions in the
beginning of FSS solicitations:
(1) 552.238–70, Cover Page for
Worldwide Federal Supply Schedules.
Use in all FSS solicitations. Use
Alternate I for single award Federal
Supply Schedules.
(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) As prescribed in this paragraph,
insert the following clause and
provision as an addendum to 52.212–1,
Instructions to Offerors—Commercial
Items:
(1) 552.238–73, Identification of
Electronic Office Equipment Providing
Accessibility for the Handicapped. Use
only in FSS solicitations for electronic
office equipment.
(2) 552.238–74, Introduction of New
Supplies/Services (INSS). Use only in
FSS 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) As prescribed in this paragraph,
insert the following provisions as an
addendum to 52.212–2, Evaluation—
Commercial Items:
(1) 552.238–75, Evaluation—
Commercial Items (Federal Supply
Schedules). Use in FSS standing
solicitations.
(2) 552.238–76, Use of NonGovernment Employees to Review
Offers. Use only in FSS solicitations
when non-government employees may
be utilized to review solicitation
responses.
(d) As prescribed in this paragraph,
insert the following clauses as an
addendum to Clause 52.212–4, Contract
Terms and Conditions–Commercial
Items:
(1) 552.238–77, Submission and
Distribution of Authorized FSS Price
Lists. Use in all FSS solicitations and
contracts.
(2) 552.238–78, Identification of
Products that have Environmental
Attributes. Use only in FSS solicitations
and contracts that contemplate items
with environmental attributes.
(3) 552.238–79, Cancellation. Use in
all FSS solicitations and contracts.
(4) 552.238–80, Industrial Funding
Fee and Sales Reporting. Use Alternate
I for Federal Supply Schedules with
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Transactional Data Reporting
requirements. Clause 552.238–75
Alternate I should also be used when
vendors agree to include clause
552.238–74 Alternate I in the contract.
(5) 552.238–81, Price Reductions. Use
Alternate I for Federal Supply
Schedules with Transactional Data
Reporting requirements. This alternate
clause is used when vendors agree to
include clause 552.238–74 Alternate I in
the contract.
(6) 552.238–82, Modifications
(Federal Supply Schedules). Use in all
FSS solicitations and contracts.
(i) Use Alternate I for Federal Supply
Schedules that only accept eMod.
(ii) Use Alternate II for Federal
Supply Schedules with Transactional
Data Reporting requirements. This
alternate clause is used when vendors
agree to include clause 552.238–74
Alternate I in the contract.
(7) 552.238–83, Examination of
Records by GSA (Federal Supply
Schedules). Use in all FSS solicitations
and contracts. With the Senior
Procurement’s Executive approval, the
contracting officer may modify this
clause to provide for post-award access
to and the right to examine records to
verify that the pre-award/modification
pricing, sales or other data related to the
supplies or services offered under the
contract which formed the basis for the
award/modification was accurate,
current, and complete. The following
procedures apply:
(i) Such a modification of the clause
must provide for the right of access to
expire 2 years after award or
modification.
(ii) Before modifying the clause, the
contracting officer must make a
determination that absent such access
there is a likelihood of significant harm
to the Government and submit it to the
Senior Procurement Executive for
approval.
(iii) The determinations under
paragraph (9)(ii) must be made on a
schedule-by-schedule basis.
(8) 552.238–84, Discounts for Prompt
Payment. Use in all FSS solicitations
and contracts.
(9) 552.238–85, Contractor’s Billing
Responsibilities. Use in all FSS
solicitations and contracts.
(10) 552.238–86, Delivery Schedule.
Use only in FSS solicitations and
contracts for supplies.
(11) 552.238–87, Delivery Prices. Use
in all FSS solicitations and contracts.
(12) 552.238–88, GSA Advantage!®.
Use in all FSS solicitations and
contracts except the Department of
Veterans Affairs Federal Supply
Schedules.
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(13) 552.238–89, Deliveries to the U.S.
Postal Service. Use only in FSS
solicitations and contracts 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 in FSS
solicitations and contracts when the
supply of equipment which uses
electrical current is contemplated.
(15) 552.238–91, Marking and
Documentation Requirements for
Shipping. Use only in FSS solicitations
and contracts 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 in
FSS solicitations and contracts for
supplies when a VMI Program is
contemplated.
(17) 552.238–93, Order
Acknowledgement. Use only in FSS
solicitations and contracts for supplies.
(18) 552.238–94, Accelerated Delivery
Requirements. Use only in FSS
solicitations and contracts for supplies.
(19) 552.238–95, Separate Charge for
Performance Oriented Packaging (POP).
Use only in FSS solicitations and
contracts for items defined as hazardous
under Federal Standard No. 313.
(20) 552.238–96, Separate Charge for
Delivery within Consignee’s Premises.
Use only in FSS solicitations and
contracts for supplies when allowing
offerors to propose separate charges for
deliveries within the consignee’s
premises.
(21) 552.238–97, Parts and Service.
Use in all FSS solicitations and
contracts.
(22) 552.238–98, Clauses for Overseas
Coverage. Use only in FSS solicitations
and contracts when overseas acquisition
is contemplated. The following clauses
and provisions shall also be inserted in
full text, when applicable.
(i) 52.214–34 Submission of Offers
in the English Language.
(ii) 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 Per
Shipment.
(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) 52.247–34 FOB Destination.
(x) 52.247–38 FOB Inland Carrier,
Country of Exportation.
(xi) 52.247–39 FOB Inland Point,
Country of Importation.
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(23) 552.238–99, Delivery Prices
Overseas. Use only in FSS solicitations
and contracts when overseas acquisition
is contemplated.
(24) 552.238–100, Transshipments.
Use only in FSS solicitations and
contracts when overseas acquisition is
contemplated.
(25) 552.238–101, Foreign Taxes and
Duties. Use only in FSS solicitations
and contracts when overseas acquisition
is contemplated.
(26) 552.238–102, English Language
and U.S. Dollar Requirements. Use in all
FSS solicitations and contracts.
(27) 552.238–103, Electronic
Commerce. Use in all FSS solicitations
and contracts except the Department of
Veterans Affairs Federal Supply
Schedules.
(28) 552.238–104, Dissemination of
Information by Contractor. Use in all
FSS solicitations and contracts.
(29) 552.238–105, Deliveries Beyond
the Contractual Period—Placing of
Orders. Use only in FSS solicitations
and contracts for supplies.
(30) 552.238–106, Interpretation of
Contract Requirements. Use in all FSS
solicitations and contracts.
(31) 552.238–107, Export Traffic
Release (Supplies). Use in FSS
solicitations and contracts for supplies,
except vehicles.
(32) 552.238–108, Spare Parts Kit. Use
only in FSS solicitations and contracts
for items requiring spare part kits. This
information is to be specified at the
order level.
(33) 552.238–109, Authentication
Supplies and Services. Use in Federal
Supply Schedule 70 solicitations only,
and only contracts awarded Special
Item Numbers (SINs) associated with
the Homeland Security Presidential
Directive 12 (HSPD–12).
(34) 552.238–110, Commercial
Satellite Communication
(COMSATCOM) Services. Use only in
FSS solicitations and contracts for
COMSATCOM services.
(35) 552.238–111, Environmental
Protection Agency Registration
Requirement. Use only in FSS
solicitations and contracts for supplies
when items may require registration
with the Environmental Protection
Agency.
538.7001
[Amended]
9. Amend section 538.7001 by
removing from the definition ‘‘Ordering
activity’’ ‘‘(see 552.238–78)’’ and adding
‘‘(see 552.238–113)’’ in its place.
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■
538.7004
■
[Amended]
10. Amend section 538.7004 by—
VerDate Sep<11>2014
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Jkt 247001
a. Removing from paragraph (a) ‘‘the
clause at 552.238–77’’ and adding ‘‘the
clause at 552.238–112’’ in its place;
■ b. Removing from paragraph (b) ‘‘the
clause at 552.238–78’’ and adding ‘‘the
clause at 552.238–113’’ in its place; and
■ c. Removing from paragraph (c) ‘‘the
clause at 552.238–79’’ and adding ‘‘the
clause at 552.238–114’’ in its place.
■
PART 552–SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
11. Amend section 552.212–71 by
revising the date of the clause and
paragraph (b) to read as follows:
■
552.212–71 Contract Terms and
Conditions Applicable to GSA Acquisition
of Commercial Items.
*
*
*
*
*
Contract Terms and Conditions Applicable to
GSA Acquisition of Commercial Items (May
2019)
*
*
*
*
*
(b) Clauses.
552.203–71 Restriction on Advertising
552.211–73 Marking
552.215–70 Examination of Records by GSA
552.215–72 Price Adjustment-Failure to
Provide Accurate Information
552.219–70 Allocation of Orders-Partially
Set-Aside Items
552.228–70 Workers’ Compensation Laws
552.229–70 Federal, State, and Local Taxes
552.232–23 Assignment of Claims
552.232–71 Adjusting Payments
552.232–72 Final Payment
552.232–73 Availability of Funds
552.232–78 Payment Information
552.237–71 Qualifications of Employees
552.242–70 Status Report of Orders and
Shipments
552.246–76 Warranty of Pesticides
*
*
*
*
*
12. Amend section 552.212–72 by
revising the date of the clause and
paragraph (b) to read as follows:
■
552.212–72 Contract Terms and
Conditions Required To Implement Statutes
or Executive Orders Applicable to GSA
Acquisition of Commercial Items.
*
*
*
*
*
Contract Terms and Conditions Required To
Implement Statutes or Executive Orders
Applicable to GSA Acquisition of
Commercial Items (May 2019)
*
*
*
*
*
(b) Clauses.
l552.223–70 Hazardous Substances.
l552.223–71 Nonconforming Hazardous
Material.
l552.223–73 Preservation, Packaging,
Packing, Marking and Labeling of
Hazardous Materials (HAZMAT) for
Shipments.
l552.238–73 Identification of Electronic
Office Equipment Providing
Accessibility for the Handicapped.
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l552.238–78 Identification of Products
That Have Environmental Attributes.
*
*
*
552.215–71
*
*
[Removed and Reserved]
13. Remove and reserve section
552.215–71.
■ 14. Revise sections 552.238–70
through 552.238–75 to read as follows:
■
Sec.
*
*
*
*
*
552.238–70 Cover Page for Worldwide
Federal Supply Schedules.
552.238–71 Notice of Total Small Business
Set-Aside.
552.238–72 Information Collection
Requirements.
552.238–73 Identification of Electronic
Office Equipment Providing
Accessibility for the Handicapped.
552.238–74 Introduction of New Supplies/
Services (INSS).
552.238–75 Evaluation—Commercial Items
(Federal Supply Schedule).
*
*
*
*
*
552.238–70 Cover Page for Worldwide
Federal Supply Schedules.
As prescribed in 538.273(a)(1), insert
the following provision:
Cover Page for Worldwide Federal Supply
Schedules (May 2019)
For All Geographic Areas
Solicitation No. [The contracting officer
should insert the solicitation number
here]*ll*
Federal Supply Schedule Contract for All
Geographic Areas [For supplies, the
Contracting Officer should complete the
information required by paragraph (a) and
delete paragraph (b) in its entirety. For
services, the Contracting Officer should
complete the information required by
paragraph (b) and delete (a) in its entirety.
For solicitations containing both supplies
and services, the Contracting Officer should
complete paragraphs (a) and (b).]
(a) Federal Supply Classification (FSC)
GROUP *ll* PART *ll* SECTION *ll
*
SUPPLY: *ll* FSC CLASS(ES)/
PRODUCT CODE(S)/NAICS: *ll*
(b) STANDARD INDUSTRY GROUP: *ll
* SERVICE: *ll* SERVICE CODE(S)/
NAICS: *ll*
(End of provision)
Alternate I (May 2019): As prescribed
at 538.273(a)(1)(i), add the following
paragraph (c) to the basic provision.
(c) PERIOD: *ll* THROUGH *ll
*
552.238–71
Set-Aside.
Notice of Total Small Business
As prescribed in 538.273(a)(2), insert
the following provision:
Notice of Total Small Business Set-Aside
(May 2019)
FAR clause 52.219–6, Notice of Total Small
Business Set-Aside applies to the following:
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[The contracting officer should insert the
special item numbers (SINs) set aside for
small businesses] *ll*.
(End of provision)
552.238–72 Information Collection
Requirements.
As prescribed in 538.273(a)(3), insert
the following provision:
Information Collection Requirements (May
2019)
The information collection requirements
contained in this solicitation/contract are
either required by regulation or approved by
the Office of Management and Budget
pursuant to the Paperwork Reduction Act
and assigned OMB Control No. 3090–0163.
(End of provision)
552.238–73 Identification of Electronic
Office Equipment Providing Accessibility
for the Handicapped.
As prescribed in 538.273(b)(1), insert
the following clause:
Identification of Electronic Office Equipment
Providing Accessibility for the Handicapped
(May 2019)
(a) Definitions. ‘‘Electronic office
equipment accessibility’’ means the
application/configuration of electronic office
equipment (includes hardware, software and
firmware) in a manner that accommodates
the functional limitations of individuals with
disabilities (i.e., handicapped individuals) so
as to promote productivity and provide
access to work related and/or public
information resources.
‘‘Handicapped individuals’’ mean qualified
individuals with impairments as cited in 29
CFR 1613.702(f) who can benefit from
electronic office equipment accessibility.
‘‘Special peripheral’’ means a special needs
aid that provides access to electronic
equipment that is otherwise inaccessible to a
handicapped individual.
(b) The offeror is encouraged to identify in
its offer, and include in any commercial
catalogs and pricelists accepted by the
Contracting Officer, office equipment,
including any special peripheral, that will
facilitate electronic office equipment
accessibility for handicapped individuals.
Identification should include the type of
disability accommodated and how the users
with that disability would be helped.
(End of clause)
552.238–74 Introduction of New Supplies/
Services (INSS).
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As prescribed in 538.273(b)(2), insert
the following provision:
Introduction of New Supplies/Services
(INSS) (May 2019)
(a) Definition.
Introduction of New Supplies/Services
Special Item Number (INSS SIN) means a
new or improved supply or service—within
the scope of the Federal Supply Schedule
(FSS), but not currently available under any
Federal Supply Schedule contract—that
provides a new service, function, task, or
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attribute that may provide a more economical
or efficient means for ordering activities to
accomplish their missions. It may
significantly improve an existing supply or
service. It may be a supply or service existing
in the commercial market, but not yet
introduced to the Federal Government.
(b) Offerors are encouraged to introduce
new or improved supplies or services via
INSS SIN at any time by clearly identify the
INSS SIN item in the offer.
(c) The Contracting Officer has the sole
discretion to determine whether a supply or
service will be accepted as an INSS SIN item.
The Contracting Officer will evaluate and
process the offer and may perform a technical
review. The INSS SIN provides temporary
placement until the Contracting Officer
formally categorizes the new supply or
service.
(d) If the Contractor has an existing
schedule contract, the Government may, at
the sole discretion of the Contracting Officer,
modify the existing contract to include the
INSS SIN item in accordance with 552.238–
81, Modifications (Federal Supply
Schedules).
(End of provision)
552.238–75 Evaluation—Commercial Items
(Federal Supply Schedule).
As prescribed in 538.273(c)(1), insert
the following provision:
552.238–76 Use of Non-Government
Employees to Review Offers.
As prescribed in 538.273(c)(2), insert
the following provision:
Use of Non-Government Employees to
Review Offers (May 2019)
(a) The Government may employ
individual technical consultants/advisors/
contractors from the below listed
organizations to review limited portions of
the technical, management and price
proposals to assist the government in both
pre-award and post-award functions. [The
contracting officer should insert a list of
organizations used to review solicitation
responses and execute a non-disclosure and
organizational conflict of interest statement
for all individuals conducting reviews.]
*ll*
(b) These representatives will be used to
advise on specific technical, management,
and price matters and shall not, under any
circumstances, be used as voting evaluators.
However, the Government may consider the
advice provided in its evaluation process. In
addition, Contractor personnel may be used
in specific contract administration tasks (e.g.,
administrative filing, review of deliverables,
etc.).
(c) If individual technical consultants/
advisors/contractors are utilized as described
in (b) above, they will be required to execute
a non-disclosure and organizational conflict
of interest statements.
Evaluation—Commercial Items (Federal
Supply Schedule) (May 2019)
(End of provision)
(a) The Government may make multiple
awards for the supplies or services offered in
response to this solicitation that meet the
definition of a ‘‘commercial item’’ in FAR
52.202 1. Awards may be made to those
responsible offerors that offer reasonable
pricing, conforming to the solicitation, and
will be most advantageous to the
Government, taking into consideration the
multiplicity and complexity of items of
various manufacturers and the differences in
performance required to accomplish or
produce required end results, production and
distribution facilities, price, compliance with
delivery requirements, and other pertinent
factors. By providing a selection of
comparable supplies or services, ordering
activities are afforded the opportunity to
fulfill their requirements with the item(s) that
constitute the best value and that meet their
needs at the lowest overall cost.
(b) A written notice of award or acceptance
of an offer, mailed or otherwise furnished to
the offeror within the time for acceptance
specified in the offer, shall result in a binding
contract without further action by either
party. Before the offer’s specified expiration
time, the Government may accept an offer (or
part of an offer), whether or not there are
negotiations after its receipt, unless a written
notice of withdrawal is received before
award.
■
(End of provision)
15. Add section 552.238.76 to read as
follows:
■
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16. Revise sections 552.238–77
through 552.238–79 to read as follows:
Sec.
*
*
*
*
*
552.238–77 Submission and Distribution of
Authorized Federal Supply Schedule
(FSS) Price Lists.
552.238–78 Identification of Products that
Have Environmental Attributes.
552.238–79 Cancellation.
*
*
*
*
*
552.238–77 Submission and Distribution
of Authorized Federal Supply Schedule
(FSS) Price Lists.
As prescribed in 538.273(d)(1), insert
the following clause:
Submission and Distribution of Authorized
Federal Supply Schedule (FSS) Price Lists
(May 2019)
(a) Definition. For the purposes of this
clause, the Mailing List is [Contracting officer
shall insert either: ‘‘the list of addressees
provided to the Contractor by the Contracting
Officer’’ or ‘‘the Contractor’s listing of its
Federal Government customers’’].
(b) The Contracting Officer will return one
copy of the Authorized FSS Schedule
Pricelist to the Contractor with the
notification of contract award.
(1) The Contractor shall provide to the GSA
Contracting Officer:
(i) Two paper copies of Authorized FSS
Schedule Pricelist; and
(ii) The Authorized FSS Schedule Pricelist
on a common-use electronic medium. The
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Contracting Officer will provide detailed
instructions for the electronic submission
with the award notification. Some structured
data entry in a prescribed format may be
required.
(2) The Contractor shall provide to each
addressee on the mailing list either;
(i) One paper copy of the Authorized FSS
Schedule Price List; or
(ii) A self-addressed, postage-paid
envelope or postcard to be returned by
addressees that want to receive a paper copy
of the pricelist. The Contractor shall
distribute price lists within 20 calendar days
after receipt of returned requests.
(3) The Contractor shall advise each
addressee of the availability of pricelist
information through the online Multiple
Award Schedule electronic data base.
(c) The Contractor shall make all of the
distributions required in this paragraph (c) at
least 15 calendar days before the beginning
of the contract period, or within 30 calendar
days after receipt of the Contracting Officer’s
approval for printing, whichever is later.
(d) During the period of the contract, the
Contractor shall provide one copy of its
Authorized FSS Schedule Pricelist to any
authorized schedule user, upon request. Use
of the mailing list for any other purpose is
not authorized.
(End of clause)
Alternate I (May 2019). As prescribed
in 538.273(a)(2), substitute the following
paragraph (a) for paragraph (a) of the
basic clause:
(a) Definition. For the purposes of this
clause, the Mailing List is [Contracting officer
shall insert either: ‘‘the list of addressees
provided to the Contractor by the Contracting
Officer’’ or ‘‘the Contractor’s listing of its
ordering activity customers’’].
552.238–78 Identification of Products that
Have Environmental Attributes.
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As prescribed in 538.273(d)(2), insert
the following clause:
Identification of Products That Have
Environmental Attributes (May 2019)
(a) Several laws, Executive orders, and
Agency directives require Federal buyers to
purchase products that are less harmful to
the environment, when they are life cycle
cost-effective (see FAR Subpart 23.7). The
U.S. General Services Administration (GSA)
requires contractors to highlight
environmental products under Federal
Supply Service schedule contracts in various
communications media (e.g., publications
and electronic formats).
(b) Definitions. As used in this clause—
Energy-efficient product means a product
that—
(1) Meets Department of Energy and
Environmental Protection Agency criteria for
use of the ENERGY STAR® trademark label;
or
(2) Is in the upper 25 percent of efficiency
for all similar products as designated by the
Department of Energy’s Federal Energy
Management Program.
GSA Advantage! is an on-line shopping
mall and ordering system that provides
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customers with access to products and
services under GSA contracts.
Other environmental attributes refers to
product characteristics that provide
environmental benefits, excluding recovered
materials and energy and water efficiency.
Several examples of these characteristics are
biodegradable, recyclable, reduced
pollutants, ozone safe, and low volatile
organic compounds (VOCs).
Post-consumer material means a material
or finished product that has served its
intended use and has been discarded for
disposal or recovery, having completed its
life as a consumer item. Post-consumer
material is part of the broader category of
‘‘recovered material.’’ The Environmental
Protection Agency (EPA) has developed a list
of EPA-designated products in their
Comprehensive Procurement Guidelines
(CPGs) to provide Federal agencies with
purchasing recommendations on specific
products in a Recovered Materials Advisory
Notice (RMAN). The RMAN contains
recommended recovered and post-consumer
material content levels for the specific
products designated by EPA (40 CFR part 247
and https://www.epa.gov/cpg/).
Recovered materials means waste materials
and by-products recovered or diverted from
solid waste, but the term does not include
those materials and by-products generated
from, and commonly reused within, an
original manufacturing process (Executive
Order 13101 and 42 U.S.C. 6903(19) and
https://www.epa.gov/cpg/). For paper and
paper products, see the definition at FAR
11.301 (42 U.S.C. 6962(h)).
Remanufactured means factory rebuilt to
original specifications.
Renewable energy means energy produced
by solar, wind, geothermal, and biomass
power.
Renewable energy technology means—
(1) Technologies that use renewable energy
to provide light, heat, cooling, or mechanical
or electrical energy for use in facilities or
other activities; or
(2) The use of integrated whole-building
designs that rely upon renewable energy
resources, including passive solar design.
(c) Identification requirements. (1) The
offeror must identify products that—
(i) Are compliant with the recovered and
post-consumer material content levels
recommended in the Recovered Materials
Advisory Notices (RMANs) for EPAdesignated products in the CPG program
(https://www.epa.gov/cpg/);
(ii) Contain recovered materials that either
do not meet the recommended levels in the
RMANs or are not EPA-designated products
in the CPG program (see FAR 23.401 and
https://www.epa.gov/cpg/);
(iii) Are energy-efficient, as defined by
either ENERGY STAR® and/or FEMP’s
designated top 25th percentile levels (see
ENERGY STAR® at https://
www.energystar.gov/ and FEMP at https://
www.eere.energy.gov/femp/procurement/);
(iv) Are water-efficient;
(v) Use renewable energy technology;
(vi) Are remanufactured; and
(vii) Have other environmental attributes.
(2) These identifications must be made in
each of the offeror’s following mediums:
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17043
(i) The offer itself.
(ii) Printed commercial catalogs, brochures,
and pricelists.
(iii) Online product website.
(iv) Electronic data submission for GSA
Advantage! submitted via GSA’s Schedules
Input Program (SIP) software or the
Electronic Data Inter-change (EDI). Offerors
can use the SIP or EDI methods to indicate
environmental and other attributes for each
product that are translated into respective
icons in GSA Advantage!.
(d) An offeror, in identifying an item with
an environmental attribute, must possess
evidence or rely on a reasonable basis to
substantiate the claim (see 16 CFR part 260,
Guides for the Use of Environmental
Marketing Claims). The Government will
accept an offeror’s claim of an item’s
environmental attribute on the basis of—
(1) Participation in a Federal agency
sponsored program (e.g., the EPA and DOE
ENERGY STAR® product labeling program);
(2) Verification by an independent
organization that specializes in certifying
such claims; or
(3) Possession of competent and reliable
evidence. For any test, analysis, research,
study, or other evidence to be ‘‘competent
and reliable,’’ it must have been conducted
and evaluated in an objective manner by
persons qualified to do so, using procedures
generally accepted in the profession to yield
accurate and reliable results.
(End of clause)
552.238–79
Cancellation.
As prescribed in 538.273(d)(3), insert
the following clause:
Cancellation (May 2019)
Either party may cancel this contract in
whole or in part by providing written notice.
The cancellation will take effect 30 calendar
days after the other party receives the notice
of cancellation. If the Contractor elects to
cancel this contract, the Government will not
reimburse the minimum guarantee.
(End of clause)
17. Add section 552.238–80 to read as
follows:
■
552.238–80 Industrial Funding Fee and
Sales Reporting.
As prescribed in 538.273(d)(4) insert
the following clause:
Industrial Funding Fee and Sales Reporting
(May 2019)
(a) Reporting of Federal Supply Schedule
Sales. The Contractor shall report all contract
sales under this contract as follows:
(1) The Contractor shall accurately report
the dollar value, in U.S. dollars and rounded
to the nearest whole dollar, of all sales under
this contract by calendar quarter (January 1–
March 31, April 1–June 30, July 1–September
30, and October 1–December 31). The dollar
value of a sale is the price paid by the
Schedule user for products and services on
a Schedule task or delivery order. The
reported contract sales value shall include
the Industrial Funding Fee (IFF). The
Contractor shall maintain a consistent
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accounting method of sales reporting, based
on the Contractor’s established commercial
accounting practice. The acceptable points at
which sales may be reported include—
(i) Receipt of order;
(ii) Shipment or delivery, as applicable;
(iii) Issuance of an invoice; or
(iv) Payment.
(2) Contract sales shall be reported to
Federal Acquisition Services (FAS) within 30
calendar days following the completion of
each reporting quarter. The Contractor shall
continue to furnish quarterly reports,
including ‘‘zero’’ sales, through physical
completion of the last outstanding task order
or delivery order of the contract.
(3) Reportable sales under the contract are
those resulting from sales of contract items to
authorized users unless the purchase was
conducted pursuant to a separate contracting
authority such as a Governmentwide
Acquisition Contract (GWAC); a separately
awarded FAR Part 12, FAR Part 13, FAR Part
14, or FAR Part 15 procurement; or a nonFAR contract. Sales made to state and local
governments under Cooperative Purchasing
authority shall be counted as reportable sales
for IFF purposes.
(4) The Contractor shall electronically
report the quarterly dollar value of sales,
including ‘‘zero’’ sales, by utilizing the
automated reporting system at an internet
website designated by the General Services
Administration (GSA)’s Federal Acquisition
Service (FAS). Prior to using this automated
system, the Contractor shall complete
contract registration with the FAS Vendor
Support Center (VSC). The website address,
as well as registration instructions and
reporting procedures, will be provided at the
time of award. The Contractor shall report
sales separately for each National Stock
Number (NSN), Special Item Number (SIN),
or sub-item.
(5) The Contractor shall convert the total
value of sales made in foreign currency to
U.S. dollars using the ‘‘Treasury Reporting
Rates of Exchange’’ issued by the U.S.
Department of Treasury, Financial
Management Service. The Contractor shall
use the issue of the Treasury report in effect
on the last day of the calendar quarter. The
report is available from Financial
Management Service, International Funds
Branch, Telephone: (202) 874–7994, internet:
https://www.fiscal.treasury.gov/fsreports/rpt/
treasRptRateExch/treasRptRateExch_
home.htm.
(b) The Contractor shall remit the IFF at the
rate set by GSA’s FAS.
(1) The Contractor shall remit the IFF to
FAS in U.S. dollars within 30 calendar days
after the end of the reporting quarter; final
payment shall be remitted within 30 days
after physical completion of the last
outstanding task order or delivery order of
the contract.
(2) The IFF represents a percentage of the
total quarterly sales reported. This percentage
is set at the discretion of GSA’s FAS. GSA’s
FAS has the unilateral right to change the
percentage at any time, but not more than
once per year. FAS will provide reasonable
notice prior to the effective date of the
change. The IFF reimburses FAS for the costs
of operating the Federal Supply Schedules
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Program. FAS recoups its operating costs
from ordering activities as set forth in 40
U.S.C. 321: Acquisition Services Fund. Net
operating revenues generated by the IFF are
also applied to fund initiatives benefitting
other authorized FAS programs, in
accordance with 40 U.S.C. 321. Offerors must
include the IFF in their prices. The fee is
included in the award price(s) and reflected
in the total amount charged to ordering
activities. FAS will post notice of the current
IFF at https://72a.gsa.gov/ or successor
website as appropriate.
(c) Within 60 days of award, an FAS
representative will provide the Contractor
with specific written procedural instructions
on remitting the IFF. FAS reserves the
unilateral right to change such instructions
from time to time, following notification to
the Contractor.
(d) Failure to remit the full amount of the
IFF within 30 calendar days after the end of
the applicable reporting period constitutes a
contract debt to the United States
Government under the terms of FAR Subpart
32.6. The Government may exercise all rights
under the Debt Collection Improvement Act
of 1996, including withholding or setting off
payments and interest on the debt (see FAR
clause 52.232–17, Interest). Should the
Contractor fail to submit the required sales
reports, falsify them, or fail to timely pay the
IFF, this is sufficient cause for the
Government to terminate the contract for
cause.
(End of clause)
Alternate I (May 2019). As prescribed
in 538.273(d)(4), substitute the
following paragraphs (a), (b), (c), and (d)
for paragraphs (a), (b), (c), and (d) of the
basic clause:
(a) Definition. ‘‘Transactional data’’
encompasses the historical details of the
products or services delivered by the
Contractor during the performance of task or
delivery orders issued against this contract.
(b) Reporting of Transactional Data. The
Contractor must report all transactional data
under this contract as follows:
(1) The Contractor must electronically
report transactional data by utilizing the
automated reporting system at an internet
website designated by the General Services
Administration (GSA) or by uploading the
data according to GSA instructions. GSA will
post registration instructions and reporting
procedures on the Vendor Support Center
website, https://vsc.gsa.gov. The reporting
system website address, as well as
registration instructions and reporting
procedures, will be provided at the time of
award or inclusion of this clause in the
contract.
(2) The Contractor must provide, at no
additional cost to the Government, the
following transactional data elements, as
applicable:
(i) Contract or Blanket Purchase Agreement
(BPA) Number.
(ii) Delivery/Task Order Number/
Procurement Instrument Identifier (PIID).
(iii) Non Federal Entity.
(iv) Description of Deliverable.
(v) Manufacturer Name.
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(vi) Manufacturer Part Number.
(vii) Unit Measure (each, hour, case, lot).
(viii) Quantity of Item Sold.
(ix) Universal Product Code.
(x) Price Paid per Unit.
(xi) Total Price.
Note to paragraph (b)(2): The Contracting
Officer may add data elements to the
standard elements listed in paragraph (b)(2)
of this section with the approvals listed in
GSAM 507.105(c)(3).
(3) The contractor must report
transactional data within 30 calendar days
from the last calendar day of the month. If
there was no contract activity during the
month, the Contractor must submit a
confirmation of no reportable transactional
data within 30 calendar days of the last
calendar day of the month.
(4) The Contractor must report the price
paid per unit, total price, or any other data
elements with an associated monetary value
listed in (b)(2) of this section, in U.S. dollars.
(5) The reported price paid per unit and
total price must include the Industrial
Funding Fee (IFF).
(6) The Contractor must maintain a
consistent accounting method of
transactional data reporting, based on the
Contractor’s established commercial
accounting practice.
(7) Reporting Points.
(i) The acceptable points at which
transactional data may be reported include—
(A) Issuance of an invoice; or
(B) Receipt of payment.
(ii) The Contractor must determine
whether to report transactional data on the
basis of invoices issued or payments
received.
(8) The Contractor must continue to
furnish reports, including confirmation of no
transactional data, through physical
completion of the last outstanding task or
delivery order of the contract.
(9) Unless otherwise expressly stated by
the ordering activity, orders that contain
classified information or other or information
that would compromise national security are
exempt from this reporting requirement.
(10) This clause does not exempt the
Contractor from fulfilling existing reporting
requirements contained elsewhere in the
contract.
(11) GSA reserves the unilateral right to
change reporting instructions following 60
calendar days’ advance notification to the
Contractor.
(c) Industrial Funding Fee (IFF).
(1) This contract includes an IFF charged
on orders placed against this contract. The
IFF is paid by the authorized ordering
activity but remitted to GSA by the
Contractor. The IFF reimburses GSA for the
costs of operating the Federal Supply
Schedule program, as set forth in 40 U.S.C.
321: Acquisition Services Fund. Net
operating revenues generated by the IFF are
also applied to fund initiatives benefitting
other authorized GSA programs, in
accordance with 40 U.S.C. 321.
(2) GSA has the unilateral right to change
the fee amount at any time, but not more than
once per year; GSA will provide reasonable
notice prior to the effective date of any
change. GSA will post notice of the current
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IFF on the Vendor Support Center website at
https://vsc.gsa.gov.
(3) Offerors must include the IFF in their
prices. The fee is included in the awarded
price(s) and reflected in the total amount
charged to ordering activities. The fee will
not be included in the price of non-contract
items purchased pursuant to a separate
contracting authority, such as a
Governmentwide Acquisition Contract
(GWAC); a separately awarded Federal
Acquisition Regulation (FAR) Part 12, FAR
Part 13, FAR Part 14, or FAR Part 15
procurement; or a non-FAR contract.
(4) The Contractor must remit the IFF to
GSA in U.S. dollars within 30 calendar days
after the last calendar day of the reporting
quarter; final payment must be remitted
within 30 calendar days after physical
completion of the last outstanding task order
or delivery order issued against the contract.
(5) GSA reserves the unilateral right to
change remittance instructions following 60
calendar days’ advance notification to the
Contractor.
(d) The Contractor’s failure to remit the full
amount of the IFF within 30 calendar days
after the end of the applicable reporting
period constitutes a contract debt to the
United States Government under the terms of
FAR Subpart 32.6. The Government may
exercise all rights under the Debt Collection
Improvement Act of 1996, including
withholding or offsetting payments and
interest on the debt (see FAR clause 52.232–
17, Interest). If the Contractor fails to submit
the required transactional data reports,
falsifies them, or fails to timely pay the IFF,
these reasons constitute sufficient cause for
the Government to terminate the contract for
cause.
18. Revise sections 552.238–81 and
552.238–82 to read as follows:
■
552.238–81
Price Reductions.
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As prescribed in 538.273(d)(5) insert
the following clause:
Price Reductions (May 2019)
(a) Before award of a contract, the
Contracting Officer and the Offeror will agree
upon (1) the customer (or category of
customers) which will be the basis of award,
and (2) the Government’s price or discount
relationship to the identified customer (or
category of customers). This relationship
shall be maintained throughout the contract
period. Any change in the Contractor’s
commercial pricing or discount arrangement
applicable to the identified customer (or
category of customers) which disturbs this
relationship shall constitute a price
reduction.
(b) During the contract period, the
Contractor shall report to the Contracting
Officer all price reductions to the customer
(or category of customers) that was the basis
of award. The Contractor’s report shall
include an explanation of the conditions
under which the reductions were made.
(c)(1) A price reduction shall apply to
purchases under this contract if, after the
date negotiations conclude, the Contractor—
(i) Revises the commercial catalog,
pricelist, schedule or other document upon
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which contract award was predicated to
reduce prices;
(ii) Grants more favorable discounts or
terms and conditions than those contained in
the commercial catalog, pricelist, schedule or
other documents upon which contract award
was predicated; or
(iii) Grants special discounts to the
customer (or category of customers) that
formed the basis of award, and the change
disturbs the price/discount relationship of
the Government to the customer (or category
of customers) that was the basis of award.
(2) The Contractor shall offer the price
reduction to the eligible ordering activity
with the same effective date, and for the same
time period, as extended to the commercial
customer (or category of customers).
(d) There shall be no price reduction for
sales—
(1) To commercial customers under firm,
fixed-price definite quantity contracts with
specified delivery in excess of the maximum
order threshold specified in this contract;
(2) To Federal agencies;
(3) Made to Eligible Ordering Activities
identified in GSAR Clause 552.238–113
when the order is placed under this contract
(and the Eligible Ordering Activities
identified in GSAR Clause 552.238–113 is the
agreed upon customer or category of
customer that is the basis of award); or
(4) Caused by an error in quotation or
billing, provided adequate documentation is
furnished by the Contractor to the
Contracting Officer.
(e) The Contractor may offer the
Contracting Officer a voluntary
Governmentwide price reduction at any time
during the contract period.
(f) The Contractor shall notify the
Contracting Officer of any price reduction
subject to this clause as soon as possible, but
not later than 15 calendar days after its
effective date.
(g) The contract will be modified to reflect
any price reduction which becomes
applicable in accordance with this clause.
(End of clause)
Alternate I (May 2019). As prescribed
in 538.273(d)(5), substitute the
following paragraph (a) and (b) for
paragraphs (a), (b), (c), (d), (e), (f) and (g)
of the basic clause:
(a) The Government may request from the
Contractor, and the Contractor may provide
to the Government, a temporary or
permanent price reduction at any time during
the contract period.
(b) The Contractor may offer the
Contracting Officer a voluntary price
reduction at any time during the contract
period.
552.238–82 Modifications (Federal Supply
Schedules).
As prescribed in 538.273(d)(6), insert
the following clause:
Modifications (Federal Supply Schedules)
(May 2019)
(a) General. The Contractor may request a
contract modification by submitting a request
to the Contracting Officer for approval,
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except as noted in paragraph (d) of this
clause. At a minimum, every request shall
describe the proposed change(s) and provide
the rationale for the requested change(s).
(b) Types of modifications—(1) Additional
items/additional SINs. When requesting
additions, the following information must be
submitted:
(i) Information requested in paragraphs (1)
and (2) of the Commercial Sales Practice
Format to add SINs.
(ii) Discount information for the new
items(s) or new SIN(s). Specifically, submit
the information requested in paragraphs 3
through 5 of the Commercial Sales Practice
Format. If this information is the same as the
initial award, a statement to that effect may
be submitted instead.
(iii) Information about the new item(s) or
the item(s) under the new SIN(s) must be
submitted in accordance with the request for
proposal.
(iv) Delivery time(s) for the new item(s) or
the item(s) under the new SIN(s) must be
submitted in accordance with the request for
proposal.
(v) Production point(s) for the new item(s)
or the item(s) under the new SIN(s) must be
submitted if required by FAR 52.215–6, Place
of Performance.
(vi) Hazardous Material information (if
applicable) must be submitted as required by
FAR 52.223–3 (Alternate I), Hazardous
Material Identification and Material Safety
Data.
(vii) Any information requested by FAR
52.212–3(f), Offeror Representations and
Certifications—Commercial Items, that may
be necessary to assure compliance with FAR
52.225–1, Buy American Act—Balance of
Payments Programs—Supplies.
(2) Deletions. The Contractors shall provide
an explanation for the deletion. The
Government reserves the right to reject any
subsequent offer of the same item or a
substantially equal item at a higher price
during the same contract period, if the
contracting officer finds the higher price to
be unreasonable when compared with the
deleted item.
(3) Price reduction. The Contractor shall
indicate whether the price reduction falls
under the item (i), (ii), or (iii) of paragraph
(c)(1) of the Price Reductions clause at
552.238–81. If the Price reduction falls under
item (i), the Contractor shall submit a copy
of the dated commercial price list. If the price
reduction falls under item (ii) or (iii), the
Contractor shall submit a copy of the
applicable price list(s), bulletins or letters or
customer agreements which outline the
effective date, duration, terms and conditions
of the price reduction.
(c) Effective dates. The effective date of any
modification is the date specified in the
modification, except as otherwise provided
in the Price Reductions clause at 552.238–81.
(d) Electronic file updates. The Contractor
shall update electronic file submissions to
reflect all modifications. For additional items
or SINs, the Contractor shall obtain the
Contracting Officer’s approval before
transmitting changes. Contract modifications
will not be made effective until the
Government receives the electronic file
updates. The Contractor may transmit price
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reductions, item deletions, and corrections
without prior approval. However, the
Contractor shall notify the Contracting
Officer as set forth in the Price Reductions
clause at 552.238–81.
(e) Amendments to paper Federal Supply
Schedule Price Lists. (1) The Contractor must
provide supplements to its paper price lists,
reflecting the most current changes. The
Contractor may either:
(i) Distribute a supplemental paper Federal
Supply Schedule Price List within 15
workdays after the effective date of each
modification.
(ii) Distribute quarterly cumulative
supplements. The period covered by a
cumulative supplement is at the discretion of
the Contractor, but may not exceed three
calendar months from the effective date of
the earliest modification. For example, if the
first modification occurs in February, the
quarterly supplement must cover FebruaryApril, and every three month period after.
The Contractor must distribute each quarterly
cumulative supplement within 15 workdays
from the last day of the calendar quarter.
(2) At a minimum, the Contractor shall
distribute each supplement to those ordering
activities that previously received the basic
document. In addition, the Contractor shall
submit two copies of each supplement to the
Contracting Officer and one copy to the FSS
Schedule Information Center.
(End of clause)
Alternate I (May 2019). As prescribed
in 538.273(d)(6)(i), add the following
paragraph (f) to the basic clause:
(f) Electronic submission of modification
requests is mandatory via eMod (https://
eOffer.gsa.gov), unless otherwise stated in the
electronic submission standards and
requirements at the Vendor Support Center
website (https://vsc.gsa.gov). If the electronic
submissions standards and requirements
information is updated at the Vendor
Support Center website, Contractors will be
notified prior to the effective date of the
change.
jbell on DSK3GLQ082PROD with RULES2
Alternate II (May 2019). As prescribed
in 538.273(d)(6)(ii), substitute the
following paragraph (b) for paragraph
(b) of the basic clause:
(b) Types of Modifications.
(1) Additional items/additional SINs.
When requesting additions, the Contractor
must submit the following information:
(i) Information about the new item(s) or the
item(s) under the new SIN(s) must be
submitted in accordance with the
instructions in the solicitation.
(ii) Delivery time(s) for the new item(s) or
the item(s) under the new SIN(s) must be
submitted in accordance with the request for
proposal.
(iii) Production point(s) for the new item(s)
or the item(s) under the new SIN(s) must be
submitted if required by FAR 52.215–6, Place
of Performance.
(iv) Hazardous Material information (if
applicable) must be submitted as required by
FAR 52.223–3 (Alternate I), Hazardous
Material Identification and Material Safety
Data.
VerDate Sep<11>2014
18:59 Apr 22, 2019
Jkt 247001
(v) Any information requested by FAR
52.212–3(f), Offeror Representations and
Certifications—Commercial Items, that may
be necessary to assure compliance with FAR
52.225–1, Buy American Act—Balance of
Payments Programs—Supplies.
(2) Deletions. The Contractor must provide
an explanation for the deletion. The
Government reserves the right to reject any
subsequent offer of the same item or a
substantially equal item at a higher price
during the same contract period, if the
Contracting Officer determines that the
higher price is unreasonable compared to the
price of the deleted item.
19. Add sections 552.238–83 through
552.238–115 to read as follows:
■
Sec.
*
*
*
*
*
552.238–83 Examination of Records by GSA
(Federal Supply Schedules).
552.238–84 Discounts for Prompt Payment.
552.238–85 Contractor’s Billing
Responsibilities.
552.238–86 Delivery Schedule.
552.238–87 Delivery Prices.
552.238–88 GSA Advantage!®.
552.238–89 Deliveries to the U.S. Postal
Service.
552.238–90 Characteristics of Electric
Current.
552.238–91 Marking and Documentation
Requirements for Shipping.
552.238–92 Vendor Managed Inventory
(VMI) Program.
552.238–93 Order Acknowledgement.
552.238–94 Accelerated Delivery
Requirements.
552.238–95 Separate Charge for
Performance Oriented Packaging (POP).
552.238–96 Separate Charge for Delivery
within Consignee’s Premises.
552.238–97 Parts and Service.
552.238–98 Clauses for Overseas Coverage.
552.238–99 Delivery Prices Overseas.
552.238–100 Transshipments.
552.238–101 Foreign Taxes and Duties.
552.238–102 English Language and U.S.
Dollar Requirements.
552.238–103 Electronic Commerce.
552.238–104 Dissemination of Information
by Contractor.
552.238–105 Deliveries Beyond the
Contractual Period—Placing of Orders.
552.238–106 Interpretation of Contract
Requirements.
552.238–107 Export Traffic Release
(Supplies).
552.238–108 Spare Parts Kit.
552.238–109 Authentication Supplies and
Services.
552.238–110 Commercial Satellite
Communication (COMSATCOM)
Services.
552.238–111 Environmental Protection
Agency Registration Requirement.
552.238–112 Definition (Federal Supply
Schedules)—Non-Federal Entity.
552.238–113 Scope of Contract (Eligible
Ordering Activities).
552.238–114 Use of Federal Supply
Schedule Contracts by Non-Federal
Entities.
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552.238–115 Special Ordering Procedures
for the Acquisition of Order-Level
Materials.
*
*
*
*
*
552.238–83 Examination of Records by
GSA (Federal Supply Schedules).
As prescribed in 538.273(d)(7) insert
the following clause:
Examination of Records by GSA (Federal
Supply Schedules) (May 2019)
The Contractor agrees that the
Administrator of General Services or any
duly authorized representative shall have
access to and the right to examine any books,
documents, papers and records of the
contractor involving transactions related to
this contract for overbillings, billing errors,
compliance with contract clauses 552.238–
75, Price Reductions and 552.238–74,
Industrial Funding Fee and Sales Reporting.
This authority shall expire 3 years after final
payment. The basic contract and each option
shall be treated as separate contracts for
purposes of applying this clause.
(End of clause)
552.238–84
Payment.
Discounts for Prompt
As prescribed in 538.273(d)(8), insert
the following clause:
Discounts for Prompt Payment (May 2019)
(a) Discounts for early payment (hereinafter
referred to as ‘‘discounts’’ or ‘‘the discount’’)
will be considered in evaluating the
relationship of the Offeror’s concessions to
the Government vis-a-vis the Offeror’s
concessions to its commercial and Federal
non-schedule customers, but only to the
extent indicated in this clause.
(b) Discounts will not be considered to
determine the low Offeror in the situation
described in the ‘‘Offers on Identical
Products’’ provision of this solicitation.
(c) Uneconomical discounts will not be
considered as meeting the criteria for award
established by the Government. In this
connection, a discount will be considered
uneconomical if the annualized rate of return
for earning the discount is lower than the
‘‘value of funds’’ rate established by the
Department of the Treasury and published
quarterly in the Federal Register. The ‘‘value
of funds’’ rate applied will be the rate in
effect on the date specified for the receipt of
offers.
(d) Discounts for early payment may be
offered either in the original offer or on
individual invoices submitted under the
resulting contract. Discounts offered will be
taken by the ordering activity if payment is
made within the discount period specified.
(e) Discounts that are included in offers
become a part of the resulting contracts and
are binding on the Contractor for all orders
placed under the contract. Discounts offered
only on individual invoices will be binding
on the Contractor only for the particular
invoice on which the discount is offered.
(f) In connection with any discount offered
for prompt payment, time shall be computed
from the date of the invoice. For the purpose
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of computing the discount earned, payment
shall be considered to have been made on the
date which appears on the payment check or
the date on which an electronic funds
transfer was made.
(End of clause)
552.238–85 Contractor’s Billing
Responsibilities.
As prescribed in 538.273(d)(9) insert
the following clause:
Contractor’s Billing Responsibilities (May
2019)
(a) The Contractor is required to perform
all billings made pursuant to this contract.
However, if the Contractor has dealers that
participate on the contract and the billing/
payment process by the Contractor for sales
made by the dealer is a significant
administrative burden, the following
alternative procedures may be used. Where
dealers are allowed by the Contractor to bill
ordering activities and accept payment in the
Contractor’s name, the Contractor agrees to
obtain from all dealers participating in the
performance of the contract a written
agreement, which will require dealers to—
(End of clause)]
552.238–86
Delivery Schedule.
As prescribed in 538.273(d)(10) insert
the following clause:
Delivery Schedule (May 2019)
(a) Time of delivery. The Contractor shall
deliver to destination within the number of
calendar days after receipt of order (ARO) in
the case of F.O.B. Destination prices; or to
place of shipment in transit in the case of
F.O.B. Origin prices, as set forth below.
Offerors shall insert in the ‘‘Time of Delivery
(days ARO)’’ column in the schedule of Items
a definite number of calendar days within
which delivery will be made. In no case shall
the offered delivery time exceed the
Contractor’s normal business practice. The
Government requires the Contractor’s normal
delivery time, as long as it is less than the
‘‘stated’’ delivery time(s) shown below. If the
Offeror does not insert a delivery time in the
schedule of items, the Offeror will be deemed
to offer delivery in accordance with the
Government’s stated delivery time, as stated
below [The contracting officer shall insert the
solicited items or Special Item Numbers
(SIN) as well as a reasonable delivery time
that corresponds with each item or SIN, if
known]:
Items or group of items
(special item no.
or nomenclature)
Government’s stated
delivery time
(days ARO)
Contractor’s
delivery time
*llllllll*
*llllllll*
*llllllll*
*llllllll*
*llllllll*
*llllllll*
*llllllll*
*llllllll*
*llllllll*
(b) Expedited delivery times. For those
items that can be delivered quicker than the
delivery times in paragraph (a) of this clause,
the Offeror is requested to insert below, a
time (hours/days ARO) that delivery can be
made when expedited delivery is requested.
jbell on DSK3GLQ082PROD with RULES2
(1) Comply with the same terms and
conditions as the Contractor for sales made
under the contract;
(2) Maintain a system of reporting sales
under the contract to the manufacturer,
which includes—
(i) The date of sale;
(ii) The ordering activity to which the sale
was made;
(iii) The service or supply/model sold;
(iv) The quantity of each service or supply/
model sold;
(v) The price at which it was sold,
including discounts; and
(vi) All other significant sales data.
(3) Be subject to audit by the Government,
with respect to sales made under the
contract; and
(4) Place orders and accept payments in the
name of the Contractor in care of the dealer.
(b) An agreement between a Contractor and
its dealers pursuant to this procedure will
not establish privity of contract between
dealers and the Government.
Items or group of
items
(special item no.
or nomenclature)
Expedited
delivery time
(hours/days ARO)
*lllllll
l*
*lllllll
l*
*lllllll
l*
*lllllll
l*
*lllllll
l*
*lllllll
l*
(c) Overnight and 2-Day delivery times.
Ordering activities may require overnight or
2-day delivery. The Offeror is requested to
annotate its price list or by separate
attachment identify the items that can be
delivered overnight or within 2 days.
Contractors offering such delivery services
will be required to state in the cover sheet
to its FSS price list details concerning this
service.
(End of clause)]
552.238–87
Delivery Prices.
As prescribed in 538.273(d)(11), insert
the following clause:
VerDate Sep<11>2014
18:59 Apr 22, 2019
Jkt 247001
Delivery Prices (May 2019)
(a) Prices offered must cover delivery as
provided below to destinations located
within the 48 contiguous States and the
District of Columbia.
(1) Delivery to the door of the specified
Government activity by freight or express
common carriers on articles for which storedoor delivery is provided, free or subject to
a charge, pursuant to regularly published
tariffs duly filed with the Federal and/or
State regulatory bodies governing such
carrier; or, at the option of the Contractor, by
parcel post on mailable articles, or by the
Contractor’s vehicle. Where store-door
delivery is subject to a charge, the Contractor
shall place the notation ‘‘Delivery Service
Requested’’ on bills of lading covering such
shipments, and pay such charge and add the
actual cost thereof as a separate item to his
invoice.
(2) Delivery to siding at destinations when
specified by the ordering office, if delivery is
not covered under paragraph (a)(1) of this
section.
(3) Delivery to the freight station nearest
destination when delivery is not covered
under paragraph (a)(1) or (2) of this section.
(b) The Offeror shall indicate in the offer
whether or not prices submitted cover
delivery f.o.b. destination in Alaska, Hawaii,
and the Commonwealth of Puerto Rico.
(c) When deliveries are made to
destinations outside the contiguous 48 States;
i.e., Alaska, Hawaii, and the Commonwealth
of Puerto Rico, and are not covered by
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17047
paragraph (b), above, the following
conditions will apply:
(1) Delivery will be f.o.b. inland carrier,
point of exportation (FAR 52.247–38), with
the transportation charges to be paid by the
Government from point of exportation to
destination in Alaska, Hawaii, or the
Commonwealth of Puerto Rico, as designated
by the ordering office. The Contractor shall
add the actual cost of transportation to
destination from the point of exportation in
the 48 contiguous States nearest to the
designated destination. Such costs will, in all
cases, be based upon the lowest regularly
established rates on file with the Interstate
Commerce Commission, the U.S. Maritime
Commission (if shipped by water), or any
State regulatory body, or those published by
the U.S. Postal Service; and must be
supported by paid freight or express receipt
or by a statement of parcel post charges
including weight of shipment.
(2) The right is reserved to ordering
agencies to furnish Government bills of
lading.
(End of clause)
552.238–88
GSA Advantage!®.
As prescribed in 538.273(d)(12), insert
the following clause:
GSA Advantage!® (May 2019)
(a) The Contractor shall participate in the
GSA Advantage!® online shopping service.
Information and instructions regarding
Contractor participation are contained in
clause 552.238–111, Electronic Commerce.
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(b) The Contractor shall refer to contract
clauses 552.238–71, Submission and
Distribution of Authorized FSS Price Lists
(which provides for submission of price lists
on a common-use electronic medium), and
552.238–81, Modifications (which addresses
electronic file updates).
(End of clause)
552.238–89
Service.
Deliveries to the U.S. Postal
As prescribed in 538.273(d)(13), insert
the following clause:
Deliveries to the U.S. Postal Service (May
2019)
(a) Applicability. This clause applies to
orders placed for the U.S. Postal Service
(USPS) and accepted by the Contractor for
the delivery of supplies to a USPS facility
(consignee).
(b) Mode/method of transportation. Unless
the Contracting Officer grants a waiver of this
requirement, any shipment that meets the
USPS requirements for mailability (i.e., 70
pounds or less, combined length and girth
not more than 108 inches, etc.) delivery shall
be accomplished via the use of the USPS.
Other commercial services shall not be used,
but this does not preclude the Contractor
from making delivery by the use of the
Contractor’s own vehicles.
(c) Time of delivery. Notwithstanding the
required time for delivery to destination as
may be specified elsewhere in this contract,
if shipments under this clause are mailed not
later than five (5) calendar days before the
required delivery date, delivery shall be
deemed to have been made timely.
(End of clause)
552.238–90
Current.
Characteristics of Electric Current (May 2019)
Contractors supplying equipment which
uses electrical current are required to supply
equipment suitable for the electrical system
at the location at which the equipment is to
be used as specified on the order.
(End of clause)
552.238–91 Marking and Documentation
Requirements for Shipping.
jbell on DSK3GLQ082PROD with RULES2
As prescribed in 538.273(d)(15), insert
the following clause:
Marking and Documentation Requirements
for Shipping (May 2019)
(a) Responsibility. It shall be the
responsibility of the ordering activity to
determine the full marking and
documentation requirements necessary under
the various methods of shipment authorized
by the contract.
(b) Documentation. In the event the
ordering activity fails to provide the essential
information and documentation, the
Contractor shall, within three days after
receipt of order, contact the ordering activity
and advise them accordingly. The Contractor
shall not proceed with any shipment
18:59 Apr 22, 2019
(End of clause)
552.238–92 Vendor Managed Inventory
(VMI) Program.
As prescribed in 538.273(d)(16), insert
the following clause:
Vendor Managed Inventory (VMI) Program
(May 2019)
(a) The term ‘‘Vendor Managed Inventory’’
describes a system in which the Contractor
monitors and maintains specified inventory
levels for selected items at designated
stocking points. VMI enables the Contractor
to plan production and shipping more
efficiently. Stocking points benefit from
reduced inventory but steady stock levels.
(b) Contractors that commercially provide
a VMI-type system may enter into similar
partnerships with ordering agencies under a
Blanket Purchase Agreement.
(End of clause)
552.238–93
Characteristics of Electric
As prescribed in 538.273(d)(14), insert
the following clause:
VerDate Sep<11>2014
requiring transshipment via U.S. Government
facilities without the prerequisites stated in
paragraph (c) of this section.
(c) Direct shipments. The Contractor shall
mark all items ordered against this contract
with indelible ink, paint or fluid, as follows:
(1) Traffic Management or Transportation
Officer at FINAL destination.
(2) Ordering Supply Account Number.
(3) Account number.
(4) Delivery Order or Purchase Order
Number.
(5) National Stock Number, if applicable;
or Contractor’s item number.
(6) Box llof llBoxes.
(7) Nomenclature (brief description of
items).
Jkt 247001
Order Acknowledgement.
As prescribed in 538.273(d)(17), insert
the following clause:
Order Acknowledgement (May 2019)
Contractors shall acknowledge only those
orders which state ‘‘Order Acknowledgement
Required.’’ These orders shall be
acknowledged within 10 calendar days after
receipt. Such acknowledgement shall be sent
to the ordering activity placing the order and
contain information pertinent to the order,
including the anticipated delivery date.
(End of clause)
552.238–94 Accelerated Delivery
Requirements.
As prescribed in 538.273(d)(18), insert
the following clause:
Accelerated Delivery Requirements (May
2019)
When the Federal Supply Schedule
contract delivery period does not meet the
bona fide urgent delivery requirements of an
ordering activity, the ordering activity is
encouraged, if time permits, to contact the
Contractor for the purpose of obtaining
accelerated delivery. The Contractor shall
reply to the inquiry within three (3) business
days after receipt. (Telephonic replies shall
be confirmed by the Contractor in writing.)
If the Contractor offers an accelerated
delivery time acceptable to the ordering
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activity, any order(s) placed pursuant to the
agreed upon accelerated delivery time frame
shall be delivered within this shorter
delivery time and in accordance with all
other terms and conditions of the contract.
(End of clause)
552.238–95 Separate Charge for
Performance Oriented Packaging (POP).
As prescribed in 538.273(d)(19), insert
the following clause:
Separate Charge for Performance Oriented
Packaging (POP) (May 2019)
(a) Offerors are requested to list the
hazardous material item to which the
separate charge applies in the spaces
provided in this paragraph or on a separate
attachment. The final price shall be quoted
separately at the order level and, if
considered reasonable, will be accepted as
part of the order.
ITEMS
SINS or Descriptive
Name of Articles
(as appropriate).
Charge for Performance Oriented
(b) Ordering activities will not be obligated
to utilize the Contractor’s services for
Performance Oriented Packaging, and they
may obtain such services elsewhere if
desired. However, the Contractor shall
provide items in Performance Oriented
Packaging when such packing is specified on
the delivery order. The Contractor’s contract
price and the charge for Performance
Oriented Packaging will be shown as separate
entries on the delivery order.
(End of clause)
552.238–96 Separate Charge for Delivery
within Consignee’s Premises.
As prescribed in 538.273(d)(20), insert
the following clause:
Separate Charge for Delivery within
Consignee’s Premises (May 2019)
(a) Offerors are requested to insert, in the
spaces provided below or by attachment
hereto, a separate charge for ‘‘Delivery
Within Consignee’s Premises’’ applicable to
each shipping container to be shipped.
(Articles which are comparable in size and
weight, and for which the same charge is
applicable, should be grouped under an
appropriate item description.) These
additional charges will be accepted as part of
the award, if considered reasonable, and
shall be included in the Contractor’s
published catalog and/or price list.
(b) Ordering activities are not obligated to
issue orders on the basis of ‘‘Delivery Within
Consignee’s Premises,’’ and Contractors may
refuse delivery on that basis provided such
refusal is communicated in writing to the
ordering activity issuing such orders within
5 days of the receipt of such order by the
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Contractor and provided further, that
delivery is made in accordance with the
other delivery requirements of the contract.
Failure of the Contractor to submit this
notification within the time specified shall
constitute acceptance to furnish ‘‘Delivery
Within Consignee’s Premises’’ at the
additional charge awarded. When an
ordering activity issues an order on the basis
of ‘‘Delivery Within Consignee’s Premises’’ at
the accepted additional charge awarded and
the Contractor accepts such orders on that
basis, the Contractor will be obligated to
provide delivery ‘‘F.o.b. Destination, Within
Consignee’s Premises’’ in accordance with
FAR 52.247–35, which is then incorporated
by reference, with the exception that an
additional charge as provided herein is
allowed for such services. Unless otherwise
stipulated by the Offeror, the additional
charges awarded hereunder may be applied
to any delivery within the 48 contiguous
States and the District of Columbia.
(c) When exercising their option to issue
orders on the basis of delivery service as
provided herein, ordering activities will
specify ‘‘Delivery Within Consignee’s
Premises’’ on the order, and will indicate the
exact location to which delivery is to be
made. The Contractor’s delivery price and
the additional charge(s) for ‘‘Delivery Within
Consignee’s Premises’’ will be shown as
separate entries on the order.
ITEMS
(NSNs or Special
Item Numbers or
Descriptive Name
of Articles).
Additional Charge
(Per shipping container) FOR ‘‘DELIVERY WITHIN
CONSIGNEE’S
PREMISES’’
(End of clause)
552.238–97
Parts and Service.
jbell on DSK3GLQ082PROD with RULES2
As prescribed in 538.273(d)(21), insert
the following clause:
Parts and Service (May 2019)
(a) For equipment under items listed in the
schedule of items or services on which offers
are submitted, the Contractor represents by
submission of this offer that parts and
services (including the performing of
warranty or guarantee service) are now
available from dealers or distributors serving
the areas of ultimate overseas destination or
that such facilities will be established and
will be maintained throughout the contract
period. If a new servicing facility is to be
established, the facility shall be established
no later than the beginning of the contract
period.
(b) Each Contractor shall be fully
responsible for the services to be performed
by the named servicing facilities, or by such
facilities to be established, and fully
guarantees performance of such services if
the original service proves unsatisfactory.
VerDate Sep<11>2014
18:59 Apr 22, 2019
Jkt 247001
(c) Contractors are requested to provide the
Ordering Activity, the names and addresses
of all supply and service points maintained
in the geographic area in which the
Contractor will perform. Please indicate
opposite each point whether or not a
complete stock of repair parts for items
offered is carried at that point, and whether
or not mechanical service is available.
(End of clause)
552.238–98
Coverage.
Clauses for Overseas
As prescribed in 538.273(d)(22), insert
the following clause:
Clauses for Overseas Coverage (May 2019)
The following clauses apply to overseas
coverage.
(a) 52.214–34 Submission of Offers in the
English Language
(b) 52.214–35 Submission of Offers in U.S.
Currency
(c) 552.238–90 Characteristics of Electric
Current
(d) 552.238–91 Marking and Documentation
Requirements Per Shipment
(e) 552.238–97 Parts and Service
(f) 552.238–99 Delivery Prices Overseas
(g) 552.238–100 Transshipments
(h) 552.238–101 Foreign Taxes and Duties
(i) 52.247–34 FOB Destination
(j) 52.247–38 FOB Inland Carrier, Point of
Exportation
(k) 52.247–39 FOB Inland Point, Country of
Importation
(End of clause)
552.238–99
Delivery Prices Overseas.
As prescribed in 538.273(d)(23), insert
the following clause:
Delivery Prices Overseas (May 2019)
(a) Prices offered must cover delivery to
destinations as provided as follows:
(1) Direct delivery to consignee. F.O.B.
Inland Point, Country of Importation (FAR
52.247–39). (Offeror should indicate
countries where direct delivery will be
provided.)
(2) Delivery to overseas assembly point for
transshipment when specified by the
ordering activity, if delivery is not covered
under paragraph (1), above.
(3) Delivery to the overseas port of entry
when delivery is not covered under
paragraph (a)(1) or (2) of this section.
(b) Geographic area(s)/countries/zones
which are intended to be covered must be
identified in the offer.
(End of clause)
552.238–100
Transshipments.
As prescribed in 538.273(d)(24), insert
the following clause:
Transshipments (May 2019)
(a) The Contractor shall complete two (2)
DD Forms 1387, Military Shipment Labels
and, if applicable, four copies of DD Form
1387–2, Special Handling/Data
Certification—used when shipping
chemicals, dangerous cargo, etc.
(1) Two copies of the DD Form 1387 will
be attached to each shipping container
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17049
delivered to the port Transportation Officer
for subsequent transshipment by the
Government as otherwise provided for under
the terms of this contract.
(2) These forms will be attached to one end
and one side, not on the top or bottom, of the
container.
(3) The Contractor will complete the
bottom line of these forms, which pertains to
the number of pieces, weight and cube of
each piece, using U.S. weight and cubic
measures. Weights will be rounded off to the
nearest pound. (One kg = 2.2 U.S. pounds;
one cubic meter = 35.3156 cubic feet.)
(b) In addition, if the cargo consists of
chemicals, or is dangerous, one copy of the
DD Form 1387–2 will be attached to the
container, and three copies will be furnished
to the Transportation Officer with the Bill of
Lading.
(c) Dangerous cargo will not be
intermingled with non-dangerous cargo in
the same container.
(d) Copies of the above forms and
preparation instructions will be obtained
from the ordering activity issuing the
Delivery Order. Reproduced copies of the
forms are acceptable.
(e) Failure to include DD Form 1387, and
DD Form 1387–2, if applicable, on each
shipping container will result in rejection of
shipment by the port Transportation Officer.
(End of clause)
552.238–101
Foreign Taxes and Duties.
As prescribed in 538.273(d)(25), insert
the following clause:
Foreign Taxes and Duties (May 2019)
Prices offered must be net, delivered, f.o.b.
to the destinations accepted by the
Government.
(a) The Contractor warrants that such
prices do not include any tax, duty, customs
fees, or other foreign Governmental costs,
assessments, or similar charges from which
the U.S. Government is exempt.
(b) Standard commercial export packaging,
including containerization, if necessary,
packaging, preservation, and/or marking are
included in the pricing offered and accepted
by the Government.
(End of clause)
552.238–102 English Language and U.S.
Dollar Requirements.
As prescribed in 538.273(d)(26), insert
the following clause:
English Language and U.S. Dollar
Requirements (May 2019)
(a) All documents produced by the
Contractor to fulfill requirements of this
contract including, but not limited to,
Federal Supply Schedule catalogs and price
lists, must reflect all terms and conditions in
the English language.
(b) U.S. dollar equivalency, if applicable,
will be based on the rates published in the
‘‘Treasury Reporting Rates of Exchange’’ in
effect as of the date of the agency’s purchase
order or in effect during the time period
specified elsewhere in this contract.
(End of clause)
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Electronic Commerce.
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As prescribed in 538.273(d)(27), insert
the following clause:
Electronic Commerce (May 2019)
(a) General background. The Federal
Acquisition Streamlining Act (FASA) of 1994
requires the Government to evolve its
acquisition process from one driven by paper
to an expedited process based on electronic
commerce/electronic data interchange (EC/
EDI). EC/EDI encompasses more than merely
automating manual processes and
eliminating paper transactions. EC/EDI
improves business processes (e.g.
procurement, finance, logistics) into a fully
electronic environment and fundamentally
changes the way organizations operate.
(b) Trading partners and Value-Added
Networks (VAN’s).
(1) Within the electronic commerce
architecture, electronic documents (e.g.,
orders, invoices, etc.) are carried between the
Federal Government’s procuring office and
Contractors (now known as ‘‘trading
partners’’). These transactions are carried by
commercial telecommunications companies
called Value-Added Networks (VAN’s).
(2) EDI can be performed using
commercially available hardware, software,
and telecommunications. The selection of a
VAN is a business decision Contractors must
make. There are many different VAN’s which
provide a variety of electronic services and
different pricing strategies. If the VAN only
provides communications services, you may
also need a software translation package.
(c) Registration instructions. To perform
EDI with the Government, Contractors shall
register as a trading partner. Contractors will
provide regular business information,
banking information, and EDI capabilities to
all agencies in this single registration. A
central repository of all trading partners is
the Systems for Award Management (SAM)
https://www.sam.gov. Contractors shall follow
the instructions on the SAM website
regarding how to register for EDI.
(d) Implementation conventions. All EDI
transactions must comply with the Federal
Implementation Conventions (ICs). The ICs
are available on a registry maintained by the
National Institute of Standards and
Technology (NIST). It is accessible via the
INTERNET at https://www.nist.gov/itl. ICs are
available for common business documents
such as Purchase Order, Price Sales Catalog,
Invoice, Request for Quotes, etc.
(e) Additional information. GSA has
additional information available for
Contractors who are interested in using EC/
EDI on its website, www.gsa.gov.
(f) GSA Advantage!®. (1) GSA Advantage!®
uses electronic commerce to receive catalogs,
invoices and text messages; and to send
purchase orders, application advice, and
functional acknowledgments. GSA
Advantage!® enables customers to:
(i) Perform database searches across all
contracts by manufacturer; manufacturer’s
model/part number; Contractor; and generic
supply categories.
(ii) Generate EDI delivery orders to
Contractors, generate EDI delivery orders
from the Federal Supply Service to
Contractors, or download files to create their
own delivery orders.
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(iii) Use the credit card.
(2) GSA Advantage!® may be accessed via
the GSA Home Page. The internet address is:
https://www.gsa.gov.
(End of clause)
552.238–104 Dissemination of Information
by Contractor.
As prescribed in 538.273(d)(28), insert
the following clause:
Dissemination of Information by Contractor
(May 2019)
The Government will provide the
Contractor with a single copy of the resulting
Federal Supply Schedule contract award
documents. However, it is the responsibility
of the Contractor to furnish all sales outlets
authorized to participate in the performance
of the contract with the terms, conditions,
pricing schedule, and other appropriate
information.
(End of clause)
552.238–105 Deliveries Beyond the
Contractual Period—Placing of Orders.
As prescribed in 538.273(d)(29), insert
the following clause:
Deliveries Beyond the Contractual Period—
Placing of Orders (May 2019)
In accordance with Clause 552.238–78,
Scope of Contract (Eligible Ordering
Activities), this contract covers all
requirements that may be ordered, as
distinguished from delivered during the
contract term. This is for the purpose of
providing continuity of supply or operations
by permitting ordering activities to place
orders as requirements arise in the normal
course of operations. Accordingly, any order
mailed (or received, if forwarded by other
means than through the mail) to the
Contractor on or before the expiration date of
the contract, and providing for delivery
within the number of days specified in the
contract, shall constitute a valid order.
Contractor shall forward completed copies of
GSA Form 1611, Application for Shipping
Instructions and Notice of Availability, to the
GSA office designated on the purchase order
at least 15 days prior to the anticipated
shipping date. Copies of GSA Form 1611 will
be furnished to the Contractor with the
purchase order. Failure to comply with this
requirement could result in nonacceptance of
the material by authorities at the port of
exportation. When supplies for export are
ordered by other Government agencies the
Contractor should obtain shipping
instructions from the ordering agency.
(End of clause)
552.238–108
Spare Parts Kit.
As prescribed in 538.273(d)(32), insert
the following clause:
Spare Parts Kit (May 2019)
(a) The Contractor will be required to offer
a spare parts kit conforming, generally, to the
following requirements for each item
awarded under this solicitation: [The
Ordering Activity contracting officer should
insert the specifications for a spare parts kit
specific to the solicited items.]
(b) The Contractor shall furnish prices for
spare parts kits as follows:
(i) Price of kit unpackaged.
(ii) Price of kit in domestic pack.
(iii) Price of kit in wooden case, steelstrapped.
(c) The Contractor will be required to
furnish a complete description of spare parts
kit offered, a list of parts included, and the
price of the kit delivered f.o.b. destination to
any point within the conterminous United
States within 15 days after receipt of a
request from the Ordering Activity
Contracting Officer. If the kit offered is
acceptable to the Ordering Activity, awards
covering requirements will be made by
supplemental agreement to this contract.
(End of clause)
(End of clause)
552.238–109
Services.
552.238–106 Interpretation of Contract
Requirements.
As prescribed in 538.273(d)(33), insert
the following clause:
As prescribed in 538.273(d)(30), insert
the following clause:
Authentication Supplies and Services (May
2019)
(a) General background. (1) The General
Services Administration (GSA) established
the ‘‘Identity and Access Management
Services’’ (IAMS) Program to clearly define
the kinds of digital certificates and PKI
services that meet the requirements for
service providers and supplies that support
FISMA-compliant IAM systems deployed by
Federal agencies.
(2) Homeland Security Presidential
Directive 12 (HSPD–12), ‘‘Policy for a
Common Identification Standard for Federal
Employees and Contractors’’ establishes the
requirement for a mandatory Governmentwide standard for secure and reliable forms
of identification issued by the Federal
Government to its employees and Contractor
employees assigned to Government contracts
in order to enhance security, increase
Government efficiency, reduce identity fraud,
and protect personal privacy. Further, the
Interpretation of Contract Requirements (May
2019)
No interpretation of any provision of this
contract, including applicable specifications,
shall be binding on the Government unless
furnished or agreed to in writing by the
Contracting Officer or his designated
representative.
(End of clause)
552.238–107
(Supplies).
Export Traffic Release
As prescribed in 538.273(d)(31), insert
the following clause:
Export Traffic Release (Supplies) (May 2019)
Supplies ordered by GSA for export will
not be shipped by the Contractor until
shipping instructions are received from GSA.
To obtain shipping instructions, the
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Directive requires the Department of
Commerce to promulgate a Federal standard
for secure and reliable forms of identification
within six months of the date of the
Directive. As a result, the National Institute
of Standards and Technology (NIST) released
Federal Information Processing Standard
(FIPS) 201–2: Personal Identity Verification
of Federal Employees and Contractors August
2013. FIPS 201–2 requires that the digital
certificates incorporated into the Personal
Identity Verification (PIV) identity
credentials comply with the X.509 Certificate
Policy for the U.S. Federal PKI Common
Policy Framework. In addition, FIPS 201–2
requires that Federal identity badges referred
to as PIV credentials, issued to Federal
employees and Contractors comply with the
Standard and associated NIST Special
Publications 800–73, 800–76, 800–78, and
800–79.
(b) Special item numbers. GSA has
established the e-Authentication Initiative
(see URL: https://www.idmanagement.gov) to
provide common infrastructure for the
authentication of the public and internal
Federal users for logical access to Federal
e-Government applications and electronic
services. To support the government-wide
implementation of HSPD–12 and the Federal
e-Authentication Initiative, GSA has
established Special Item Numbers (SINs)
pertaining to Authentication Products and
Services, including Electronic Credentials,
Digital Certificates, eAuthentication, Identify
and Access Management, PKI Shared Service
Providers, and HSPD–12 Product and Service
Components.
(c) Qualification information. (1) All
Authentication supplies and services must be
qualified as being compliant with
Government-wide requirements before they
will be included on a GSA Information
Technology (IT) Schedule contract. The
Qualification Requirements and associated
evaluation procedures against the
Qualification Requirements for each SIN and
the specific Qualification Requirements for
HSPD–12 implementation components are
presented at the following URL: https://
www.idmanagement.gov.
(2) In addition, the National Institute of
Standards and Technology (NIST) has
established the NIST Personal Identity
Verification Program (NPIVP) to evaluate
integrated circuit chip cards and supplies
against conformance requirements contained
in FIPS 201. GSA has established the FIPS
201Evaluation Program to evaluate other
supplies needed for agency implementation
of HSPD–12 requirements where normative
requirements are specified in FIPS 201 and
to perform card and reader interface testing
for interoperability. Products that are
approved as FIPS–201 compliant through
these evaluation and testing programs may be
offered directly through HSPD–12 Supplies
and Services Components SIN under the
category ‘‘Approved FIPS 201-Compliant
Products and services.
(d) Qualification requirements. Offerors
proposing Authentication supplies and
services under the established SINs are
required to provide the following:
(1) Proposed items must be determined to
be compliant with Federal requirements for
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that SIN. Qualification Requirements and
procedures for the evaluation of supplies and
services are posted at the URL: https://
www.idmanagement.gov. GSA will follow
these procedures in qualifying offeror’s
supplies and services against the
Qualification Requirements for applicable to
SIN. Offerors must submit all documentation
certification letter(s) for Authentication
Supplies and Services offerings at the same
time as submission of proposal. Award will
be dependent upon receipt of official
documentation from the Acquisition Program
Management Office (APMO) listed below
verifying satisfactory qualification against the
Qualification Requirements of the proposed
SIN(s).
(2) After award, Contractor agrees that
certified supplies and services will not be
offered under any other SIN on any Federal
Supply Schedule
(3)(i) If the Contractor changes the supplies
or services previously qualified, GSA may
require the Contractor to resubmit the
supplies or services for re-qualification.
(ii) If the Federal Government changes the
qualification requirements or standards,
Contractor must resubmit the supplies and
services for re-qualification.
(4) Immediately prior to making an award,
Contracting Officers MUST consult the
following website to ensure that the supplies
and/or services recommended for award
under any Authentication Supplies and
Services SINs are in compliance with the
latest APL qualification standards:
www.idmanagement.gov. A dated copy of the
applicable page should be made and
included with the award documents.
(e) Demonstrating conformance. (1) The
Federal Government has established
Qualification Requirements for
demonstrating conformance with the
Standards. The following websites provide
additional information regarding the
evaluation and qualification processes:
(i) For Identify and Access Management
Services (IAMS) and PKI Shared Service
Provider (SSP) Qualification Requirements
and evaluation procedures: https://
www.idmanagement.gov;
(ii) For HSPD–12 Product and Service
Components Qualification Requirements and
evaluation procedures: https://
www.idmanagement.gov;
(iii) For FIPS 201 evaluation program
testing and certification procedures: https://
www.idmanagement.gov/fips201/.
(f) Acquisition Program Management
Office (APMO). GSA has established the
APMO to provide centralized technical
oversight and management regarding the
qualification process to industry partners and
Federal agencies. Contact the following
APMO for information on the
eAuthentication Qualification process.
Technical, APMO, FIPS 201, and HSPD–12
Points of Contact can be found below, or in
an additional attachment to the solicitation.
[The contracting officer should insert the
points of contact information below, unless
otherwise included elsewhere in the
solicitation.]
*ll*
(End of clause)
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17051
552.238–110 Commercial Satellite
Communication (COMSATCOM) Services.
As prescribed in 538.273(d)(34) insert
the following clause:
Commercial Satellite Communication
(COMSATCOM) Services (May 2019)
(a) General background. Special Item
Numbers (SINs) have been established for
Commercial Satellite Communications
(COMSATCOM) services, focused on
transponded capacity (SIN 132–54) and fixed
and mobile subscription services (SIN 132–
55), to make available common
COMSATCOM services to all Ordering
Activities.
(b) Information assurance. (1) The
Contractor shall demonstrate, to the
maximum extent practicable, the ability to
meet:
(i) The Committee on National Security
Systems Policy (CNSSP) 12, ‘‘National
Information Assurance Policy for Space
Systems used to Support National Security
Missions,’’ or
(ii) Department of Defense Directive
(DoDD) 8581.1, ‘‘Information Assurance (IA)
Policy for Space Systems Used by the
Department of Defense.’’
(2) The Contractor shall demonstrate the
ability to comply with the Federal
Information Security Management Act of
2002 as implemented by Federal Information
Processing Standards Publication 200 (FIPS
200), ‘‘Minimum Security Requirements for
Federal Information and Information
Systems.’’ In response to ordering activity
requirements, at a minimum, all services
shall meet the requirements assigned against:
(i) A low-impact information system (per
FIPS 200) that is described in the current
revision of National Institute of Standards
and Technology (NIST) Special Publication
(SP) 800–53, ‘‘Recommended Security
Controls for Federal Information Systems and
Organizations,’’ or
(ii) A Mission Assurance Category (MAC)
III system that is described in the current
revision of DoD Instruction (DoDI) 8500.2,
‘‘Information Assurance Implementation.’’
(3) The Contractor’s information assurance
boundary is where the Contractor’s services
connect to the user terminals/equipment (i.e.,
includes satellite command encryption
(ground and space); systems used in the
Satellite Operations Centers (SOCs), Network
Operations Centers (NOCs) and teleport; and
terrestrial infrastructure required for service
delivery).
(c) Delivery schedule. The Contractor shall
deliver COMSATCOM services in accordance
with 552.238–90.
(d) Portability. The Contractor shall have
the capability to redeploy COMSATCOM
services, subject to availability. Portability
shall be provided within the COMSATCOM
Contractor’s resources at any time as
requested by the ordering activity. When
portability is exercised, evidence of
equivalent net present value (NPV) shall be
provided by the Contractor.
(e) Flexibility/optimization. The Contractor
shall have the capability to re-groom
resources for spectral, operational, or price
efficiencies. Flexibility/optimization shall be
provided within the COMSATCOM
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Contractor’s resources at any time as
requested by the ordering activity. When
flexibility/optimization is exercised,
evidence of equivalent net present value
(NPV) shall be provided by the Contractor.
The Contractor is encouraged to submit regrooming approaches for ordering activity
consideration that may increase efficiencies
for existing COMSATCOM services.
(f) Net ready (interoperability).
COMSATCOM services shall be consistent
with commercial standards and practices.
Services shall have the capability to access
and/or interoperate with Government or
other Commercial teleports/gateways and
provide enterprise service access to or among
networks or enclaves. Interfaces may be
identified as interoperable on the basis of
participation in a sponsored interoperability
program.
(g) Network monitoring (Net OPS). The
Contractor shall have the capability to
electronically collect and deliver near realtime monitoring, fault/incident/outage
reporting, and information access to ensure
effective and efficient operations,
performance, and availability, consistent
with commercial practices. Consistent with
the Contractor’s standard management
practices, the Net Ops information will be
provided on a frequency (example: Every 6
hours, daily) and format (example: SNMP,
XML) as defined in a requirement to a
location/entity/electronic interface defined
by the ordering activity. Specific reporting
requirements will be defined by the Ordering
Activity.
(h) EMI/RFI identification,
characterization, and geo-location. The
Contractor shall have the capability to collect
and electronically report in near real-time
Electro Magnetic Interference (EMI)/Radio
Frequency Interference (RFI) identification,
characterization, and geo-location, including
the ability to identify and characterize subcarrier EMI/RFI being transmitted
underneath an authorized carrier, and the
ability to geo-locate the source of any and all
EMI/RFI. The Contractor shall establish and
use with the ordering activity a mutually
agreed upon media and voice
communications capability capable of
protecting ‘‘Sensitive, but Unclassified’’ data.
(i) Security. (1) The Contractor may be
required to obtain/possess varying levels of
personnel and facility security clearances up
to U.S. Government TOP SECRET/Sensitive
Compartmented Information (TS/SCI) or
equivalent clearances assigned by the
National Security Authority of a NATO
Member State or Major Non-NATO Ally.
(2) For incident resolution involving
classified matters, the Contractor shall
provide appropriately cleared staff who can
affect COMSATCOM services operations
(example: Satellite payload operations,
network operations). The Contractor shall
provide a minimum of one operations staff
member AND a minimum of one person with
the authority to commit the company if
resolution requires business impacting
decisions (example: Chief Executive Officer,
Chief Operations Officer, etc.).
(3) When Communications Security or
Transmission Security equipment or keying
material is placed in the equipment/terminal
shelter, the Contractor shall ensure
compliance with applicable physical security
directives/guidelines and that all deployed
equipment/terminal operations and
maintenance personnel shall possess the
appropriate clearances, equal to or higher
than the classification level of the data being
transmitted. Where local regulations require
use of foreign personnel for terminal
operations and maintenance, then the
Contractor shall ensure compliance with
applicable security directives/guidelines and
document to the U.S. Government’s
satisfaction that protective measures are in
place and such individuals have equivalent
clearances granted by the local host nation.
(4) For classified operations security
(OPSEC), the Contractor shall ensure that all
personnel in direct contact with classified
OPSEC indicators (example: The unit,
location, and time of operations) have U.S.
SECRET or higher personnel security
clearances, or, as appropriate, equivalent
clearances assigned by the National Security
Authority of a NATO Member State or Major
Non-NATO Ally, in accordance with
applicable security directives and guidelines.
(5) For classified requirements, cleared
satellite operator staff must have access to
secure voice communications for emergency
purposes. Communications security
equipment certified by the National Security
Agency (NSA) to secure unclassified and up
to and including SECRET communication
transmissions at all operations centers is
preferred. If a Contractor is unable to have
access to NSA-approved communications
security equipment at its operations centers,
then a combination of a ‘‘Sensitive but
Unclassified’’ (SBU) cryptographic module
approved by the U.S. National Institute for
Standards and Technology and pre-arranged
access to National Security Agency-approved
communications security equipment at an
agreed alternate facility is acceptable.
(6) The Contractor shall have the capability
to ‘‘mask’’ or ‘‘protect’’ users against
unauthorized release of identifying
information to any entity that could
compromise operations security. Identifying
information includes but is not limited to
personal user and/or unit information
including tail numbers, unit names, unit
numbers, individual names, individual
contact numbers, street addresses, etc.
(j) Third party billing for COMSATCOM
subscription services. The Contractor shall
identify authorized network infrastructure for
the ordering activity. In some cases, the user
of the terminal may access network
infrastructure owned or operated by a third
party. In the event a terminal is used on a
third party’s network infrastructure, the
Contractor shall provide to the ordering
activity, invoices and documentation
reflecting actual usage amount and third
party charges incurred. The ordering activity
shall be billed the actual third party charges
incurred, or the contract third party billing
price, whichever is less.
(End of clause)
552.238–111 Environmental Protection
Agency Registration Requirement.
As prescribed in 538.273(d)(35), insert
the following clause:
Environmental Protection Agency
Registration Requirement (May 2019)
(a) With respect to the products described
in this solicitation which require registration
with the Environmental Protection Agency
(EPA), as required by the Federal Insecticide,
Fungicide, and Rodenticide Act, Section 3,
Registration of Pesticides, awards will be
made only for such products that have been
assigned an EPA registration number, prior to
the time of bid opening.
(b) The offeror shall insert in the spaces
provided in this section, the manufacturer’s
and/or distributor’s name and the ‘‘EPA
Registration Number’’ for each item offered.
Any offer which does not specify a current
‘‘EPA Registration Number’’ in effect for the
duration of the contract period, and
including the manufacturer’s and/or
distributor’s name will be rejected.
Items
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Item numbers
Name of manufacturer/distributor
(c) If, during the performance of a contract
awarded as a result of this solicitation, the
EPA Registration Number for products being
furnished is terminated, withdrawn,
canceled, or suspended, and such action does
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EPA registration number
not arise out of causes beyond the control,
and with the fault or negligence of the
Contractor or subcontractor, the Government
may terminate the contract pursuant to either
the Default Clause or Termination for Cause
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Date of expiration
Paragraph (contained in the clause 52.212–4,
Contract Terms and Conditions—Commercial
Items), whichever is applicable to the
resultant contract.
(End of clause)
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552.238–112 Definition (Federal Supply
Schedules)—Non-Federal Entity.
As prescribed in 538.7004(a), insert
the following clause:
Definition (Federal Supply Schedules)—NonFederal Entity (May 2019)
Ordering activity (also called ‘‘ordering
agency’’ and ‘‘ordering office’’) means an
eligible ordering activity (see 552.238–113),
authorized to place orders under Federal
Supply Schedule contracts.
(End of clause)
552.238–113 Scope of Contract (Eligible
Ordering Activities).
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As prescribed in 538.7004 (b) insert
the following clause:
Scope of Contract (Eligible Ordering
Activities) (May 2019)
(a) This solicitation is issued to establish
contracts which may be used on a
nonmandatory basis by the agencies and
activities named below, as a source of supply
for the supplies or services described herein,
for domestic and/or overseas delivery. For
Special Item Number 132–53, Wireless
Services ONLY, limited geographic coverage
(consistent with the Offeror’s commercial
practice) may be proposed.
(1) Executive agencies (as defined in FAR
Subpart 2.1) including nonappropriated fund
activities as prescribed in 41 CFR 101–
26.000;
(2) Government contractors authorized in
writing by a Federal agency pursuant to FAR
51.1;
(3) Mixed ownership Government
corporations (as defined in the Government
Corporation Control Act);
(4) Federal Agencies, including
establishments in the legislative or judicial
branch of government (except the Senate, the
House of Representatives and the Architect of
the Capitol and any activities under the
direction of the Architect of the Capitol).
(5) The District of Columbia;
(6) Tribal governments when authorized
under 25 U.S.C. 450j(k);
(7) Tribes or tribally designated housing
entities pursuant to 25 U.S.C. 4111(j);
(8) Qualified Nonprofit Agencies as
authorized under 40 U.S.C. 502(b); and
(9) Organizations, other than those
identified in paragraph (d) of this clause,
authorized by GSA pursuant to statute or
regulation to use GSA as a source of supply.
(b) Definitions.
Domestic delivery is delivery within the 48
contiguous states, Alaska, Hawaii, Puerto
Rico, Washington, DC, and U.S. territories.
Domestic delivery also includes a port or
consolidation point, within the
aforementioned areas, for orders received
from overseas activities.
Overseas delivery is delivery to points
outside of the 48 contiguous states,
Washington, DC, Alaska, Hawaii, Puerto
Rico, and U.S. territories.
(c) Offerors are requested to check one of
the following boxes:
b Contractor will provide domestic and
overseas delivery.
b Contractor will provide overseas
delivery only.
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b Contractor will provide domestic
delivery only.
(d) The following activities may place
orders against Schedule contracts:
(1) State and local government may place
orders against Schedule 70 contracts, and
Consolidated Schedule contracts containing
information technology Special Item
Numbers, and Schedule 84 contracts, on an
optional basis; PROVIDED, the Contractor
accepts order(s) from such activities;
(2) The American National Red Cross may
place orders against Federal Supply
Schedules for products and services in
furtherance of the purposes set forth in its
Federal charter (36 U.S.C. 300102);
PROVIDED, the Contractor accepts order(s)
from the American National Red Cross; and
(3) Other qualified organizations, as
defined in section 309 of the Robert T.
Stafford Disaster Relief and Emergency
Assistance Act (42 U.S.C. 5152), may place
orders against Federal Supply Schedules for
products and services determined to be
appropriate to facilitate emergency
preparedness and disaster relief and set forth
in guidance by the Administrator of General
Services, in consultation with the
Administrator of the Federal Emergency
Management Agency; PROVIDED, the
Contractor accepts order(s) from such
activities.
(4) State and local governments may place
orders against Federal Supply Schedules for
good or services determined by the Secretary
of Homeland Security to facilitate recovery
from a major disaster declared by the
President under the Robert T. Stafford
Disaster Relief and Emergency Assistance Act
(42 U.S.C. 5121, et seq.) to facilitate disaster
preparedness or response, or to facilitate
recovery from terrorism or nuclear,
biological, chemical, or radiological attack;
PROVIDED, the Contractor accepts order(s)
from such activities.
(e) Articles or services may be ordered
from time to time in such quantities as may
be needed to fill any requirement, subject to
the Order Limitations thresholds which will
be specified in resultant contracts. Overseas
activities may place orders directly with
schedule contractors for delivery to CONUS
port or consolidation point.
(f)(1) The Contractor is obligated to accept
orders received from activities within the
Executive branch of the Federal Government.
(2) The Contractor is not obligated to
accept orders received from activities outside
the Executive branch; however, the
Contractor is encouraged to accept such
orders. If the Contractor elects to accept such
orders, all provisions of the contract shall
apply, including clause 52.232–36 Payment
by Third Party. If the Contractor is unwilling
to accept such orders, and the proposed
method of payment is not through the Credit
Card, the Contractor shall return the order by
mail or other means of delivery within 5
workdays from receipt. If the Contractor is
unwilling to accept such orders, and the
proposed method of payment is through the
Credit Card, the Contractor must so advise
the ordering activity within 24 hours of
receipt of order. (Reference clause 52.232–36
Payment by Third Party.) Failure to return an
order or advise the ordering activity within
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17053
the time frames of this paragraph shall
constitute acceptance whereupon all
provisions of the contract shall apply.
(g) The Government is obligated to
purchase under each resultant contract a
guaranteed minimum of $2,500 (two
thousand, five hundred dollars) during the
contract term.
(h) All users of GSA’s Federal Supply
Schedules, including non-Federal users, shall
use the schedules in accordance with the
ordering guidance provided by the
Administrator of General Services. GSA
encourages non-Federal users to follow the
Schedule Ordering Procedures set forth in
the Federal Acquisition Regulation (FAR) 8.4,
but they may use different established
competitive ordering procedures if such
procedures are needed to satisfy their state
and local acquisition regulations and/or
organizational policies.
(End of clause)
552.238–114 Use of Federal Supply
Schedule Contracts by Non-Federal
Entities.
As prescribed in 538.7004(c), insert
the following clause:
Use of Federal Supply Schedule Contracts by
Non-Federal Entities (May 2019)
(a) If an entity identified in paragraph (d)
of the clause at 552.238–113, Scope of
Contract (Eligible Ordering Activities), elects
to place an order under this contract, the
entity agrees that the order shall be subject
to the following conditions:
(1) When the Contractor accepts an order
from such an entity, a separate contract is
formed which incorporates by reference all
the terms and conditions of the Schedule
contract except the Disputes clause, the
patent indemnity clause, and the portion of
the Commercial Item Contract Terms and
Conditions that specifies ‘‘Compliance with
laws unique to Government contracts’’
(which applies only to contracts with entities
of the Executive branch of the U.S.
Government). The parties to this new
contract which incorporates the terms and
conditions of the Schedule contract are the
individual ordering activity and the
Contractor. The U.S. Government shall not be
liable for the performance or nonperformance
of the new contract. Disputes which cannot
be resolved by the parties to the new contract
may be litigated in any State or Federal court
with jurisdiction over the parties, applying
Federal procurement law, including statutes,
regulations and case law, and, if pertinent,
the Uniform Commercial Code. To the extent
authorized by law, parties to this new
contract are encouraged to resolve disputes
through Alternative Dispute Resolution.
Likewise, a Blanket Purchase Agreement
(BPA), although not a contract, is an
agreement that may be entered into by the
Contractor with such an entity and the
Federal Government is not a party.
(2) Where contract clauses refer to action
by a Contracting Officer or a Contracting
Officer of GSA, that shall mean the
individual responsible for placing the order
for the ordering activity (e.g., FAR 52.212–4
at paragraph (f) and FSS clause I–FSS–249
B.)
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(3) As a condition of using this contract,
eligible ordering activities agree to abide by
all terms and conditions of the Schedule
contract, except for those deleted clauses or
portions of clauses mentioned in paragraph
(a)(1) of this clause. Ordering activities may
include terms and conditions required by
statute, ordinance, regulation, order, or as
otherwise allowed by State and local
government entities as a part of a statement
of work (SOW) or statement of objective
(SOO) to the extent that these terms and
conditions do not conflict with the terms and
conditions of the Schedule contract. The
ordering activity and the Contractor
expressly acknowledge that, in entering into
an agreement for the ordering activity to
purchase goods or services from the
Contractor, neither the ordering activity nor
the Contractor will look to, primarily or in
any secondary capacity, or file any claim
against the United States or any of its
agencies with respect to any failure of
performance by the other party.
(4) The ordering activity is responsible for
all payments due the Contractor under the
contract formed by acceptance of the
ordering activity’s order, without recourse to
the agency of the U.S. Government, which
awarded the Schedule contract.
(5) The Contractor is encouraged, but not
obligated, to accept orders from such entities.
The Contractor may, within 5 days of receipt
of the order, decline to accept any order, for
any reason. The Contractor shall fulfill orders
placed by such entities, which are not
declined within the 5-day period.
(6) The supplies or services purchased will
be used for governmental purposes only and
will not be resold for personal use. Disposal
of property acquired will be in accordance
with the established procedures of the
ordering activity for the disposal of personal
property.
(b) If the Schedule Contractor accepts an
order from an entity identified in paragraph
(d) of the clause at 552.238–113, Scope of
Contract (Eligible Ordering Activities), the
Contractor agrees to the following conditions:
(1) The ordering activity is responsible for
all payments due the Contractor for the
contract formed by acceptance of the order,
without recourse to the agency of the U.S.
Government, which awarded the Schedule
contract.
(2) The Contractor is encouraged, but not
obligated, to accept orders from such entities.
The Contractor may, within 5 days of receipt
of the order, decline to accept any order, for
any reason. The Contractor shall decline the
order using the same means as those used to
place the order. The Contractor shall fulfill
orders placed by such entities, which are not
declined within the 5-day period.
(c) In accordance with clause 552.238–80,
Industrial Funding Fee and Sales Reporting,
the Contractor must report the quarterly
dollar value of all sales under this contract.
When submitting sales reports, the
Contractor must report two dollar values for
each Special Item Number:
(1) The dollar value for sales to entities
identified in paragraph (a) of the clause at
552.238–113, Scope of Contract (Eligible
Ordering Activities), and
VerDate Sep<11>2014
18:59 Apr 22, 2019
Jkt 247001
(2) The dollar value for sales to entities
identified in paragraph (d) of clause 552.238–
113 Scope of Contract (Eligible Ordering
Activities).
(End of clause)
552.238–115 Special Ordering Procedures
for the Acquisition of Order-Level Materials.
As prescribed in 538.7204(b), insert
the following clause:
Special Ordering Procedures for the
Acquisition of Order-Level Materials (May
2019)
(a) Definition.
Order-level materials means supplies and/
or services acquired in direct support of an
individual task or delivery order placed
against a Federal Supply Schedule (FSS)
contract or FSS blanket purchase agreement
(BPA), when the supplies and/or services are
not known at the time of Schedule contract
or FSS BPA award. The prices of order-level
materials are not established in the FSS
contract or FSS BPA. Order-level materials
acquired following the procedures in
paragraph (d) of this section are done so
under the authority of the FSS program,
pursuant to 41 U.S.C. 152(3), and are not
open market items, which are discussed in
FAR 8.402(f).
(b) FAR 8.403(b) provides that GSA may
establish special ordering procedures for a
particular FSS.
(c) The procedures in FAR subpart 8.4
apply to this contract, with the exceptions
listed in this clause. If a requirement in this
clause is inconsistent with FAR subpart 8.4,
this clause takes precedence pursuant to FAR
8.403(b).
(d) Procedures for including order-level
materials when placing an individual task or
delivery order against an FSS contract or FSS
BPA.
(1) The procedures discussed in FAR
8.402(f) do not apply when placing task and
delivery orders that include order-level
materials.
(2) Order-level materials are included in
the definition of the term ‘‘material’’ in FAR
clause 52.212–4 Alternate I, and therefore all
provisions of FAR clause 52.212–4 Alternate
I that apply to ‘‘materials’’ also apply to
order-level materials. The ordering activity
shall follow procedures under the Federal
Travel Regulation and FAR Part 31 when
order-level materials include travel.
(3) Order-level materials shall only be
acquired in direct support of an individual
task or delivery order and not as the primary
basis or purpose of the order.
(4) The value of order-level materials in a
task or delivery order, or the cumulative
value of order-level materials in orders
against an FSS BPA awarded under a FSS
contract shall not exceed 33.33%.
(5) All order-level materials shall be placed
under the Order-Level Materials SIN.
(6) Prior to the placement of an order that
includes order-level materials, the Ordering
Activity shall follow procedures in FAR
8.404(h).
(7) To support the price reasonableness of
order-level materials—
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Fmt 4701
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(i) The contractor proposing order-level
materials as part of a solution shall obtain a
minimum of three quotes for each order-level
material above the simplified acquisition
threshold.
(A) One of these three quotes may include
materials furnished by the contractor under
FAR 52.212–4 Alt I (i)(1)(ii)(A).
(B) If the contractor cannot obtain three
quotes, the contractor shall maintain its
documentation of why three quotes could not
be obtained to support their determination.
(C) A contractor with an approved
purchasing system per FAR 44.3 shall instead
follow its purchasing system requirement
and is exempt from the requirements in
paragraphs (d)(7)(i)(A)–(B) of this clause.
(ii) The Ordering Activity Contracting
Officer must make a determination that
prices for all order-level materials are fair
and reasonable. The Ordering Activity
Contracting Officer may base this
determination on a comparison of the quotes
received in response to the task or delivery
order solicitation or other relevant pricing
information available.
(iii) If indirect costs are approved per FAR
52.212–4(i)(1)(ii)(D)(2) Alternate I), the
Ordering Activity Contracting Officer must
make a determination that all indirect costs
approved for payment are fair and
reasonable. Supporting data shall be
submitted in a form acceptable to the
Ordering Activity Contracting Officer.
(8) Prior to an increase in the ceiling price
of order-level materials, the Ordering
Activity Contracting Officer shall follow the
procedures at FAR 8.404(h)(3)(iv).
(9) In accordance with GSAR clause
552.238–83, Examination of Records by GSA,
GSA has the authority to examine the
Contractor’s records for compliance with the
pricing provisions in FAR clause 52.212–4
Alternate I, to include examination of any
books, documents, papers, and records
involving transactions related to the contract
for overbillings, billing errors, and
compliance with the IFF and the Sales
Reporting clauses of the contract.
(10) OLMs are exempt from the following
clauses:
(i) 552.216–70 Economic Price
Adjustment—FSS Multiple Award Schedule
Contracts.
(ii) 552.238–77 Submission and
Distribution of Authorized FSS Schedule
Pricelists.
(iii) 552.238–81 Price Reductions.
(11) Exceptions for travel. (i) Travel costs
are governed by FAR 31.205–46 and therefore
the requirements in paragraph (d)(7) do not
apply to travel costs.
(ii) Travel costs do not count towards the
33.33% limitation described in paragraph
(d)(4) of this section.
(iii) Travel costs are exempt from clause
552.238–80 Industrial Funding Fee and Sales
Reporting.
(End of clause)
[FR Doc. 2019–08012 Filed 4–22–19; 8:45 am]
BILLING CODE 6820–61–P
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]]>Agencies
[Federal Register Volume 84, Number 78 (Tuesday, April 23, 2019)]
[Rules and Regulations]
[Pages 17030-17054]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-08012]
[[Page 17029]]
Vol. 84
Tuesday,
No. 78
April 23, 2019
Part IV
General Services Administration
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48 CFR Parts 501, 515, 538, et al.
General Services Administration Acquisition Regulation (GSAR); Federal
Supply Schedule Contracting (Administrative Changes); Final Rule
Federal Register / Vol. 84 , No. 78 / Tuesday, April 23, 2019 / Rules
and Regulations
[[Page 17030]]
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GENERAL SERVICES ADMINISTRATION
48 CFR Parts 501, 515, 538, and 552
[Change 100; GSAR Case 2013-G502; Docket No. GSA-GSAR-2019-0008;
Sequence No.1]
RIN 3090-AJ41
General Services Administration Acquisition Regulation (GSAR);
Federal Supply Schedule Contracting (Administrative Changes)
AGENCY: Office of Acquisition Policy, General Services Administration.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The General Services Administration (GSA) is issuing a final
rule amending the General Services Administration Acquisition
Regulation (GSAR) Part 515, Contracting by Negotiation, Part 538,
Federal Supply Schedule Contracting, and GSAR Part 552, Solicitation
Provisions and Contract Clauses, to clarify, update, and incorporate
existing Federal Supply Schedule contract administration policies and
procedures.
DATES: Effective: May 23, 2019.
FOR FURTHER INFORMATION CONTACT: Ms. Dana Bowman, General Services
Acquisition Policy Division, GSA, 202-357-9652 or email
[email protected], for clarification of content. For information
pertaining to status or publication schedules, contact the Regulatory
Secretariat Division at 202-501-4755. Please cite GSAR Case 2013-G502.
SUPPLEMENTARY INFORMATION:
I. Background
In 2006, GSA initiated a rewrite of the GSAM to consolidate,
update, and revise policy to fulfill statutory and executive order
requirements, meet the needs of evolving acquisition programs within
GSA's Federal Acquisition Service (FAS), Public Building Service (PBS),
and other staff procurement offices, and ensure consistency with the
FAR.
GSAR Case 2006-G507 was created to rewrite GSAR Part 538, Federal
Supply Schedule Contracting. The proposed rule, published in the
Federal Register at 74 FR 4596, on January 26, 2009, received well over
100 public comments and received considerable stakeholder opposition.
Therefore, GSA withdrew this case (i.e., the complete rewrite of GSAM
Part 538) in favor of an iterative approach--opening cases with a more
limited scope to allow stakeholders to focus on specific issues that
allowed for robust analysis and discussion as well as increased
transparency--while expediting the rulemaking process as much as
possible.
GSAR Case 2013-G502 Federal Supply Schedule Contracting
(Administrative Changes) \1\ was opened as one of several cases to
reform the Federal Supply Schedule (FSS) Program and address
outstanding issues. This case is focused on incorporating non-complex
provisions and clauses, updating administrative matters, and
restructuring the GSAR to be more consistent with the FAR in terms of
the FSS program.
---------------------------------------------------------------------------
\1\ See 79 FR 54126, dated September 10, 2014; Extension 79 FR
64356, dated October 29, 2014.
---------------------------------------------------------------------------
GSA's FSS program, commonly known as the GSA Schedules program or
Multiple Award Schedule (MAS) program, is the Government's most used
commercial-item purchasing channel, accounting for approximately $34.2
billion of Federal contract awards in fiscal year 2018 (not including
the VA Schedules).
GSA Schedules provide a convenient and effective option for both
ordering activities and Schedule contractors. Ordering activities enjoy
simplified ordering procedures and reduced prices, while Schedule
contractors connect with federal business quickly and easily.
Additional features of the Schedules program, including Blanket
Purchase Agreements (BPAs) and Contractor Team Arrangements (CTAs),
greatly enhance the flexibility of the program. These features offer:
Additional price discounts for ordering activities;
Expanded opportunities for contractors;
Elimination of redundant effort, with a single contracting
vehicle fulfilling complex or ongoing needs;
Reductions in administrative time and paperwork;
Expanded business opportunities for socioeconomic groups;
and
Help for ordering activities wishing to reach socio-
economic goals.
The Schedules Program supports Federal Agencies' missions by
providing access from simple commodities such as pens and pencils to
complex services such as IT Modernization.
Authority for This Rulemaking
Pursuant to paragraph (3) of section 152 of Title 41 of the United
States Code, GSA is authorized to establish procedures for the Federal
Supply Schedules (FSS) program. FSS procedures meet the Competition in
Contracting Act (CICA) requirement of full and open competition as long
as participation has been open to all responsible sources; and orders
and contracts under those procedures result in the lowest overall cost
alternative to meet the needs of the Federal Government.
II. Discussion of the Final Rule
GSA published a proposed rule with a request for public comments in
the Federal Register at 79 FR 54126 on September 10, 2014 to clarify
and update the contracting by negotiations GSAR section and incorporate
existing Federal Supply Schedule Contracting policies and procedures,
and corresponding provisions and clauses. This final rule amends the
GSAR at GSAR part 515, Contracting by Negotiation, GSAR part 538,
Federal Supply Schedule Contracting, and corresponding provisions and
clauses in GSAR part 552, Solicitation Provisions and Contract Clauses.
Specifically, the GSAR amendments included in this final rule are
as follows:
1. Solicitation and Contract Structuring: GSAR 538.273 is
restructured to be more consistent with the formation of Federal Supply
Schedule (FSS) solicitations and contracts. The previous structure of
GSAR 538.273 was based upon whether the FSS was single-award or
multiple-award. A more practical structure outlines where each
provision or clause shall be located in FSS solicitations and contracts
(e.g., as an addendum to FAR clause 52.212-1 or 52.212-4).
2. New Clauses and Provisions: Thirty (30) new FSS-specific clauses
and provisions, previously implemented through internal GSA policy and
currently in FSS solicitations and contracts are incorporated into GSAR
parts 538 and 552. Bringing these clauses and provisions into the GSAR
allows for greater transparency, and consolidates all regulations into
one area, while updating administrative information to ensure currency
and consistency within the FSS program. The thirty (30) new provisions/
clauses, prescriptions, and brief descriptions are as follows:
[[Page 17031]]
----------------------------------------------------------------------------------------------------------------
No. Name Prescription Description
----------------------------------------------------------------------------------------------------------------
552.238-70................... Cover Page for Worldwide Use in all FSS This provision notifies the
Federal Supply solicitations. Offeror of the industry and
Schedules. Use Alternate I for types of products/services
single-award Federal being solicited.
Supply Schedules.
552.238-71................... Notice of Total Small Use in FSS solicitations This provision notifies
Business Set-Aside. containing Special Item small business Offerors
Numbers (SINs) that are which Special Item Numbers
set aside for small (SINs) are set aside.
business.
552.238-72................... Information Collection Use in all FSS This provision informs
Requirements. solicitations. Offerors that only required
regulations are contained
in the solicitation.
552.238-74................... Introduction of New Use only in FSS This provision notifies
Supplies/Services solicitations allowing Offerors of the method to
(INSS). the introduction of new propose new services or
supplies/services. Note: supplies not covered by the
GSA Form 1649, Schedule.
Notification of Federal
Supply Schedule
Improvement, may be
required if revising a
Special Item Number
(SIN).
552.238-76................... Use of Non-Government Use only in FSS This provision provides
Employees to Review solicitations when non- notification to Offerors
Offers. Government employees may that non-Government
be utilized to review employees may be utilized
solicitation responses. to review their
solicitation response.
552.238-87................... Delivery Prices......... Use in all FSS This clause ensures all
solicitations and parties are aware of the
contracts. delivery terms of the
contract.
552.238-88................... GSA Advantage!.......... Use in all FSS This clause outlines to the
solicitations and Contractor that it must
contracts except the participate in the GSA
Department of Veterans Advantage![supreg] online
Affairs Federal Supply shopping service. This
Schedules. clause is not applicable to
the Department of Veterans
Affairs.
552.238-89................... Deliveries to the U.S. Use only in FSS This clause provides
Postal Service. solicitations and requirements for the
contracts for mailable delivery of mailable
articles when delivery articles delivered direct
to a U.S. Postal Service to a USPS facility. The
(USPS) facility is clause ensures the use of
contemplated. the USPS to reduce
unnecessary costs of
shipping.
552.238-90................... Characteristics of Use only in FSS This clause requires the
Electric Current. solicitations and Contractor to provide
contracts when the equipment with electrical
supply of equipment that currents suitable for the
uses electrical current location in which the
is contemplated. equipment is to be used, as
specified on the order.
552.238-91................... Marking and Use only in FSS This clause defines the
Documentation solicitations and responsibility of Ordering
Requirements for contracts for supplies Activities and Contractors
Shipping. when the need for for the marking and
outlining the minimum documentation of shipping
information and information.
documentation required
for shipping is
contemplated.
552.238-92................... Vendor Managed Inventory Use only in FSS This clause allows
(VMI) Program. solicitations and Contractors that
contracts for supplies commercially provide a VMI
when a VMI Program is type system to enter into
contemplated. similar partnerships with
customers under a Blanket
Purchase Agreements.
552.238-93................... Order Acknowledgement... Use only in FSS This clause requires
solicitations and Contractors to acknowledge
contracts for supplies. orders which state ``Order
Acknowledgement Required''
within 10 calendar days
after receipt to the
Ordering Activity placing
the order and contain
information pertinent to
the order, including the
anticipated delivery date.
552.238-94................... Accelerated Delivery Use only in FSS This clause assists with the
Requirements. solicitations and request of accelerated
contracts for supplies. delivery when the FSS
contract delivery period
does not meet the bona fide
urgent delivery
requirements of an Ordering
Activity.
552.238-95................... Separate Charge for Use only in FSS This clause ensures both
Performance Oriented solicitations and parties, Contractors and
Packaging (POP). contracts for items Ordering Activities, are
defined as hazardous aware of a separate charge
under Federal Standard for preservation,
No. 313. packaging, packing and
marking and labeling of
domestic and overseas
HAZMAT surface shipments.
552.238-96................... Separate Charge for Use only in FSS This clause ensures both
Delivery Within solicitations and parties, Contractors and
Consignee's Premises. contracts for supplies Ordering Activities, are
when allowing Offerors aware of a separate charges
to propose separate for deliveries within the
charges for deliveries consignee's premises.
within the consignee's
premises.
[[Page 17032]]
552.238-97................... Parts and Service....... Use in all FSS This clause is used to
solicitations and ensure that the parts and
contracts. services (including the
performance of warranty or
guarantee service)
submitted by Offerors
(dealers/distributors) is
good for the entire
contract period.
552.238-98................... Clauses for Overseas Use only in FSS This clause ensures all
Coverage. solicitations and applicable overseas clauses
contracts when overseas are included in the
acquisition is solicitation and contract.
contemplated.
The following clauses and
provisions shall also be
inserted in full text,
when applicable.
(a) 52.214-34 Submission
of Offers in the English
Language.
(b) 52.214-35 Submission
of Offers in U.S.
Currency.
(c) 552.238-90
Characteristics of
Electric Current.
(d) 552.238-91 Marking
and Documentation
Requirements Per
Shipment.
(e) 552.238-97 Parts and
Service.
(f) 552.238-99 Delivery
Prices Overseas.
(g) 552.238-100
Transshipments.
(h) 552.238-101 Foreign
Taxes and Duties.
(i) 52.247-34 FOB
Destination.
(j) 52.247-38 FOB Inland
Carrier, Point of
Exportation.
(k) 52.247-39 FOB Inland
Point, Country of
Importation.
552.238-99................... Delivery Prices Overseas Use only in FSS This clause is for use for
solicitations and f.o.b. destination in
contracts when overseas overseas deliveries to
acquisition is ensure that all parties are
contemplated. aware of delivery terms.
552.238-100.................. Transshipments.......... Use in FSS solicitations This clause states the terms
and contracts when and conditions for
overseas acquisition is transshipments, and
contemplated. provides information to
Contractors with the
necessary Department of
Defense forms.
552.238-101.................. Foreign Taxes and Duties Use only in FSS This clause delineates which
solicitations and fees, taxes and other
contracts when overseas foreign Governmental costs
acquisition is are exempt/non-exempt by
contemplated. the U.S. Government.
552.238-102.................. English Language and Use in all FSS This clause is used to
U.S. Dollar solicitations and instruct Contractors that
Requirements. contracts. all documents shall be
produced in the English
language, including, but
not limited to, price lists
and catalogs.
552.238-103.................. Electronic Commerce..... Use in all FSS This clause outlines the use
solicitations and of electronic commerce/data
contracts except the interchange to conduct
Department of Veterans contract processes and
Affairs Federal Supply procedures.
Schedules.
552.238-104.................. Dissemination of Use in all FSS This clause provides to the
Information by solicitations and Contractor the
Contractor. contracts. responsibility of
distributing Authorized
Federal Supply Schedule
Price Lists to all
authorized sales outlets.
552.238-105.................. Deliveries Beyond the Use only in FSS This clause allows orders to
Contractual Period-- solicitations and be processed if they were
Placing of Orders. contracts for supplies. received prior to the
expiration of the contract.
552.238-106.................. Interpretation of Use in all FSS This indicates that only
Contract Requirements. solicitations and written clarifications
contracts. regarding interpretation of
contract clauses may only
be made by the Contracting
Officer or his/her
designated representative.
552.238-107.................. Export Traffic Release Use in FSS solicitations This clause informs
(Supplies). and contracts for Contractors of the
supplies, except requirements for exporting
vehicles. items under the contract.
552.238-108.................. Spare Parts Kit......... Use only in FSS This clause ensures
solicitations and requirements for spare part
contracts for items kits are understood by all
requiring spare part parties.
kits.
[[Page 17033]]
552.238-109.................. Authentication Supplies Use in Federal Supply This clause outlines
and Services. Schedule 70 requirements for the
solicitations only, and Homeland Security
only contracts awarded Presidential Directive 12
Special Item Numbers (HSPD-12).
(SINs) associated with
the Homeland Security
Presidential Directive
12 (HSPD-12).
552.238-110.................. Commercial Satellite Use only in FSS This clause provides minimum
Communication solicitations and requirements for COMSATCOM
(COMSATCOM) Services. contracts for COMSATCOM services.
services.
552.238-111.................. Environmental Protection Use only in FSS This clause ensures items in
Agency Registration solicitations and FSC Group 68 items
Requirement. contracts for supplies (insecticides, etc.) are
when items may require properly registered with
registration with the EPA.
Environmental Protection
Agency.
----------------------------------------------------------------------------------------------------------------
3. Reinstated Clauses and Provisions: Four (4) FSS-specific clauses
and provisions that were removed from the GSAR as part of a previous
General Services Administration Acquisition Manual (GSAM) rewrite and
retained by internal GSA policy are reinstated and given new clause
numbers. The clauses and provisions are reinstated into GSAR Parts 538
and 552 in order to ensure consistency and transparency. The four (4)
reinstated clauses/provisions, prescriptions, and a brief description
are as follows:
----------------------------------------------------------------------------------------------------------------
New No. Previous No. Name Prescription Description
----------------------------------------------------------------------------------------------------------------
552.238-75............... 552.212-73 Evaluation--Commerci Use in FSS standing This provision informs
al Items (Federal solicitations. Offerors that multiple
Supply Schedules). awards for commercial
items offered may be
made, resulting in a
binding contract
between parties.
552.238-84............... 552.232-8 Discounts for Prompt Use in all FSS This clause provides the
Payment. solicitations and rules governing early
contracts. payment under the FSS
contract (and resulting
orders).
552.238-85............... 552.232-83 Contractor's Billing Use in all FSS This clause provides to
Responsibilities. solicitations and the Contractor the
contracts. requirements of billing
responsibilities,
particularly those
associated with
participating dealers.
552.238-86............... 552.211-78 Delivery Schedule... Use only in FSS This clause provides to
solicitations and the Offeror the
contracts for requirement to address
supplies. normal commercial
delivery times in its
offer.
----------------------------------------------------------------------------------------------------------------
4. Revised Existing Clauses and Provisions: Ten (10) existing FSS-
specific clauses and provisions are updated to reflect current
references and practices. The ten (10) updated existing clauses/
provisions and a brief description of the changes are as follows:
------------------------------------------------------------------------
No. Name Description of change
------------------------------------------------------------------------
552.212-71............. Contract Terms and Updated to remove
Conditions Applicable unnecessary clauses
to GSA Acquisition and outdated FSS
Commercial Items. clauses.
552.238-73............. Identification of Prescription update to
Electronic Office use only in FSS
Equipment Providing solicitations for
Accessibility for the electronic office
Handicapped. equipment.
552.238-74............. Submission and Prescription updated
Distribution of to use in all FSS
Authorized Federal solicitations and
Supply Schedule (FSS) contracts.
Price Lists.
552.238-75............. Identification of Prescription updated
Products that have to use only in FSS
Environmental solicitations and
Attributes. contracts that
contemplate items
with environmental
attributes.
552.238-76............. Cancellation........... Prescription updated
to use in all FSS
solicitations and
contracts.
552.238-77............. Industrial Funding Fee Prescription updated
and Sales Reporting. to use in all FSS
solicitations and
contracts.
552.238-78............. Price Reductions....... Prescription updated
to use in all FSS
solicitations and
contracts.
552.238-79............. Scope of Contract Updated to reference
(Eligible Ordering the correct payment
Activities). clause, FAR 52.232-
36, Payment by Third
Party.
552.238-80............. Modifications.......... Prescription updated
to use in all FSS
solicitations and
contracts.
(i) Use Alternate I
for Federal Supply
Schedules that only
accept eMod.
552.238-81............. Examination of Records Relocated and retitled
by GSA (Federal Supply from 552.215-71,
Schedules). Examination of
Records by GSA
(Multiple Award
Schedule) as this is
an FSS-specific
clause.
------------------------------------------------------------------------
[[Page 17034]]
5. Technical Amendments: Typographical errors are corrected and
minor administrative changes are made to GSAR parts 538 and 552 (e.g.,
renumbers existing provisions and clauses, changes ``MAS'' to ``FSS''
to be more consistent with the FAR).
A. Summary of Significant Changes From the Proposed Rule
Three respondents submitted numerous comments in response to the
proposed rule. The General Services Administration has reviewed the
comments in the development of the final rule. A discussion of the
comments and the changes made to the rule as a result of these comments
are addressed in the Analysis of Public Comments Section.
This final rule makes the following changes from the proposed rule:
New Clauses and Provisions: Forty-three (43) new FSS-
specific clauses and provisions were contemplated in the proposed rule
for public comment.\2\ The proposed rule published incorrectly stated
this number as thirty-five (35) and listed forty-five (45) clauses.
However, 552.238-82 (Proposed Rule), now 552.238-89 (Final Rule),
Delivery Schedule was incorrectly included in the ``new'' clause list
rather than the ``reinstated'' clause list. In addition, 552.238-92
Examination of Records by GSA (Federal Supply Schedules) was
incorrectly included in the ``new'' clause list rather than the
``revised existing'' clause list. So, the correct number was forty-
three (43) ``new'' FSS-specific clauses in the proposed rule. After
taking into consideration public comments received from the proposed
rule, thirty (30) new FSS-specific clauses and provisions are
incorporated into GSAR parts 538 and 552 in the final rule. The
following thirteen (13) clauses from the proposed rule are removed from
the GSAR final rule:
---------------------------------------------------------------------------
\2\ The proposed rule at 79 FR 54126 notes thirty-five (35) new
clauses and provisions in the text at Paragraph I.2, but lists
forty-five (45) new clauses and provisions in the table. One (1) of
the clauses listed in the proposed rule table, ``Delivery
Schedule'', was actually previously part of the GSAR and is now
reinstated; this is now reflected in Paragraph II.3 of the final
rule. One (1) of the clauses listed in the proposed rule table,
``Examination of Records by GSA'', actually existed in the GSAR and
is moved; this is now reflected in Paragraph II.4 of the final rule.
[cir] 552.238-85 Significant Changes
[cir] 552.238-88 Notice: Requests for Explanation or Information and
Hours of Operation
[cir] 552.238-91 Authorized Negotiators
[cir] 552.238-102 Inspection at Destination
[cir] 552.238-106 Post-Award Samples
[cir] 552.238-107 Restriction on the Acceptance of Orders
[cir] 552.238-110 Shipping Points
[cir] 552.238-111 Contact for Contract Administration
[cir] 552.238-119 Federal Excise Tax
[cir] 552.238-120 Guarantee
[cir] 552.238-122 Imprest Funds
[cir] 552.238-127 Export Traffic Release (Vehicles)
[cir] 552.238-128 Carload Shipments
Reinstated Clauses and Provisions: Seven (7) FSS-specific
clauses and provisions were contemplated for reinstatement in the
proposed rule for public comment. The proposed rule published
incorrectly identified this number as six (6), because 552.238-82
(P.R.), now 552.238-90 (F.R.) Delivery Schedule was incorrectly
included in the list of ``new'' FSS-specific clauses rather than the
``reinstated'' clauses. After taking into consideration public comments
received from the proposed rule, four (4) FSS-specific clauses and
provisions are reinstated into GSAR parts 538 and 552 in the final
rule. The following three (3) clauses from the proposed rule are
removed from the GSAR final rule:
[cir] 552.238-89 Contractor's Remittance (Payment) Address
[cir] 552.238-97 Payment by Credit Card
[cir] 552.238-98 Warranty
Revised Existing Clauses and Provisions: Nine (9) existing
clauses and provisions were contemplated for revision in the proposed
rule for public comment. The proposed rule published incorrectly
identified this number as seven (7) clauses. However, GSAR clause
552.238-94 Examination of Records by GSA (Federal Supply Schedules) was
incorrectly included in the list of ``new'' FSS-specific clauses rather
than the ``revised existing'' clauses. In addition, GSAR clause
552.238-78 Scope of Contract (Eligible Ordering Activities) is revised
to replace the reference to GSAR clause 552.232-79 Payment by Credit
Card, which is redundant to FAR clause 52.232-36 Payment by Third
Party, and is now included in the list of ``revised existing'' clauses.
So, the correct number is nine (9) ``revised existing'' FSS-specific
clauses from the proposed rule. After reviewing the public comments and
reflecting on the content, ten (10) revised existing FSS-specific
provisions and clauses are incorporated into GSAR parts 538 and 552 in
the final rule. The following one (1) GSAR clause is added to the GSAR
final rule because it includes references to GSAR clauses affected by
this case and is amended to reflect such.
[cir] 552.212-71 Contract Terms and Conditions Applicable to GSA
Acquisition of Commercial Items
B. Analysis of Public Comments
GSA received numerous comments from three respondents in response
to the proposed rule.\3\ All comments filed were considered. A
discussion of the comments and the changes made to the final rule as a
result of those comments is provided as follows:
---------------------------------------------------------------------------
\3\ See GSAR Case 2013-G502; Docket 2014-0009; Sequence 1 [79 FR
54125 (September 10, 2014)].
---------------------------------------------------------------------------
The comments received covered several points and topics. In order
to provide clarification and to better respond to the issues raised,
the respondents' comments are organized into the following categories:
(1) General comments regarding the overall rule; (2) Comments on
specific provisions and clauses in the rule; (3) Comments regarding the
Paperwork Reduction Act and Regulatory Flexibility Act; and (4)
Comments outside the scope of the rule.
1. General Comments
The following general comments were received in response to the
proposed rule:
Respondent: There is value in GSA maintaining a system of
Acquisition and Instruction Letters to the GSAR as this is a mechanism
to provide transparency.
GSA Response: GSA will continue to maintain a system of Acquisition
Letters and Instructional Letters to supplement the GSAR. However, the
goal is to implement such policy letters into the GSAM/GSAR for
transparency and policy guidance. No changes were made to the final
rule as a result of this comment.
Respondent: GSA should initiate a Federal Acquisition Regulation
(FAR) case to delete all references to ``Federal Supply Schedule
(FSS)'' and replace with the term ``GSA Multiple Award Schedule (MAS)''
or ``GSA Schedule.''
GSA Response: ``Federal Supply Schedule'' is being incorporated in
the GSAR to achieve consistency with the FAR, which does not frequently
use the term ``Multiple Award Schedule (MAS).'' Until MAS is changed in
the FAR, the GSAR will use the term Federal Supply Schedule.
Respondent: GSA has not performed a detailed analysis of nor
obtained a baseline understanding of how the proposed policies were
historically administered and implemented across all Schedules and the
GSA FSS contracting officer community.
GSA Response: GSA has performed an in-depth analysis of the clauses
proposed in this rule and has
[[Page 17035]]
determined that the clauses are still used in FSS contracts. Adding
them to the GSAR increases clarity for FSS contracting officers and
contractors to understand when each clause should be used. However,
based on comments received in response to the proposed rule, some
clauses are revised to address the specific comments related to
outdated policies. No changes were made to the final rule as a result
of this comment.
Respondent: GSA should reissue the proposed rule, covering only
clauses currently included in all GSA Schedule contracts and which are
being incorporated into the GSAR without change.
GSA Response: This rule only incorporates clauses currently in use
by the FSS program through internal agency policy (e.g., acquisition
letters). With the exception of minor administrative edits, different
numbers, and slightly different names to improve clarity, the
substances of the clauses are the same as those currently in FSS
contracts and are being incorporated into the GSAR without change.
Respondent: Additional time should be allocated to interested
parties to comment on the proposed language, discuss specific issues
with each of the legacy policies, and the implications on current
operations.
GSA Response: GSA extended the comment period to provide additional
time for interested parties to provide comments (See 79 FR 64356).
Respondent: The respondent requested clarity on the number of new
FSS-specific clauses currently in FSS solicitations that will be
incorporated into the GSAR.
GSA Response: The final rule incorporates 33 new FSS-specific
clauses.
2. Comments on Specific Provisions and Clauses
GSAR Text Amended as a Result of Public Comments
Respondent: The proposed rule adds GSAR clause Evaluation--
Commercial Items including an alternate.
A clause entitled Evaluation--Commercial Items (Multiple Award
Schedule (552.212-73) has been in the MAS contract since 1997.
Alternate I, however, is new and a significant change to the way
resellers' offers are now evaluated. Further, the provisions of the
clause are inconsistent with MAS contracting policy and procedures.
Alternate I is prescribed for use in non-standing Schedules. At a
minimum the rule should explain what a non-standing schedule is. It is
not a concept currently in use.
GSA Response: Concur. The alternate version of the provision is
removed from the GSAR text final rule. Additionally, instructions for a
single-award Federal Supply Schedule which has a beginning and end
date, and also known as a non-standing solicitation, are included in
the new GSAR provision Cover Page for Worldwide Federal Supply
Schedules, which instructs contracting officers to insert a beginning
and end date for non-standing solicitations.
Respondent: GSAR clause Notice Request for Explanations or
Information and Hours of Operation appears duplicative and/or
unnecessary. Information for offerors to submit questions is already
included in the SF 1449.
GSA Response: Concur. This clause is duplicative of the Standard
Form 1449 and is therefore deleted from the GSAR text of the final
rule.
Respondent: What is the purpose of including a unique inspection
clause, such as the proposed GSAR clause Inspection, in MAS contracts?
The commercial item clause has an inspection provision and an alternate
for use in service contracts.
GSA Response: Concur. This clause was previously used specifically
for stock and special order contracts and does not belong in GSAR part
538. The clause is deleted from the GSAR text final rule.
Respondent: The following GSAR clauses are unique to an individual
procurement. GSA should consider removing them from the GSAR and
including them in a document or database that is easier to change to
keep pace with federal and industry changes.
A. Post-award Samples prescribes a samples clause applicable only
to carpet.
B. Export Traffic Release (Vehicles) prescribes a clause applicable
only to vehicles.
C. Restriction on the Acceptance of Orders prescribes a clause
restricting the receipt of orders from Navy ships that is only
applicable to copiers, supplies and services.
D. Federal Excise Taxes prescribes an Excise Tax applicable only to
tires and tubes.
E. Carload Shipments prescribes a clause applicable only in
contracts for vehicles.
GSA Response: Concur. The prescriptions and associated clauses are
deleted from the GSAR text final rule.
Respondent: GSA's proposed clause Contractor's Remittance (Payment)
Address provision appears to be duplicative or in conflict with FAR
12.303 which requires the remittance address be addressed in Block 18B
of SF1449.
GSA Response: Concur. This clause is deleted from the GSAR text of
the final rule.
Respondent: Recommend GSA review FAR 32.1108 as it applies to GSA's
proposed GSAR clause Payment by Credit Card and the ``third party''
payment clause to ensure the proposed clause is not inconsistent with
or in conflict with FAR.
GSA Response: Concur. The proposed GSAR clause Payment by Credit
Card is redundant to FAR clause 52.232-36 and is removed from the GSAR
text final rule. Additionally, GSAR clause Scope of Contract (Eligible
Ordering Activities) is amended as a result of this comment.
Respondent: GSAR clauses Performance Oriented Packaging; Parts and
Service; and Spare Parts, seem impracticable to negotiate at the
schedule contract level. GSA should consider deleting these clauses
from the GSAR or including instructions for implementing the provisions
at the task order level.
GSA Response: Concur. The clauses are maintained at the contract
level, but are revised to require submission of the required
information at the task order level. GSAR text is amended as a result
of this comment.
Respondent: GSAR clause Authorized Negotiators appears to be
duplicative of FAR 52.203-2 provision which is mandatory for all FSS
contracts. This clause and GSAR clause Contact for Contract
Administration should use a designated URL to revise POC information
and feed this information to associated contract systems.
GSA Response: Both clauses are removed from the GSAR text final
rule. The agency will take this suggestion into consideration when
updating applicable policy in the future.
Respondent: Vendors frequently use multiple carriers for shipments.
It is therefore not feasible to specify a specific carrier at the
Schedule contract level as required in GSAR clause Shipping Points.
GSA Response: Concur. This clause is removed from the GSAR text
final rule.
Respondent: GSA should insert a statement at the end of GSAR clause
Significant Changes that prior to refreshing a solicitation to
incorporate significant changes, existing contractors should be given
no less than 60 days to review and comment or implement the provision.
GSA Response: This clause is removed from the GSAR text final rule.
FAS provides offerors with a 30-day notice when a solicitation is
amended
[[Page 17036]]
from a previous version to a new version.
Respondent: The GSAR clause Guarantee is applicable only to major
appliances. GSA should consider going to standard commercial warranty
in all MAS schedules as provided for in the proposed Warranty clause
and FAR clause 52.212-4 Contract Terms and Conditions--Commercial
Items.
GSA Response: Concur. This clause is removed from the GSAR text
final rule. The standard commercial warranty applies to all FSS
contracts.
Respondent: GSA's proposed clause Warranty appears to be
duplicative or in conflict with FAR 52.212-4(o) clause. Also, COs are
required to make a determination (D&F) in the Acquisition Plan IAW FAR
46.703 prior to including a warranty clause.
GSA Response: Concur. This clause is removed from the GSAR text
final rule. The standard commercial warranty applies to all FSS
contracts.
Respondent: Recommend GSA delete proposed GSAR clause Imprest Funds
(Petty Cash) since the use of imprest funds are established by
individual agencies. Also FAR 13.305-3 establishes Conditions for Use
of Imprest Funds including a limit of $500.
GSA Response: Concur. This clause is removed from the GSAR text
final rule.
GSAR Text not Amended as a Result of Public Comments
Respondent: GSAR clause Evaluation--Commercial Items (Federal
Supply Schedules) appears to be duplicative and/or in conflict with
FAR. ``Multiple awards'' and basis of awards are already addressed
under FAR 52.212-1(g) and (h). Also the phrase ``at the lowest overall
cost'' implies that there is a head-to-head price competition that is
not applicable to schedule offers. Also paragraph (b) appears to
duplicate FAR 52.212-2(c). Withdrawals are addressed under FAR 52.212-
1.
GSA Response: As stated above, Alternate I of GSAR provision
Evaluation--Commercial Items (Federal Supply Schedules) is deleted from
the GSAR text of the final rule. However, the purpose of the basic
provision is not duplicative and does not conflict with the FAR
provision. The FAR provision the respondent cites, 52.212-1, is
intended to provide instructions to offerors, whereas GSAR provision
Evaluation--Commercial Items is intended to supplement FAR provision
52.212-2.
Respondent: Should the proposed GSAR clause Vendor Managed
Inventory be included in all solicitations? This clause typically
applies only in Schedule 51V and perhaps Schedule 75.
GSA Response: This clause is not prescribed for all solicitations.
It is only included in solicitations and contracts for supplies when a
VMI Program is contemplated.
Respondent: Delivery prices and terms are a matter of FSS contract
negotiations, which should be based on a contractor's commercial
practices. Mandating specific delivery terms and pricing, such as GSAR
clauses Delivery Prices Overseas and Delivery Prices, will result in
schedule contractors having to deviate from their standard commercial
practices. Customization of these terms to meet GSA specific
requirements could necessitate wholesale changes to contractor shipping
and delivery processes.
GSA Response: GSAR clauses Delivery Prices Overseas and Delivery
Prices do not state specific delivery terms or pricing. The clauses
require contractors to notify the Government if they cannot deliver
within the specified locations agreed to up-front. Also, the clauses
are essential to FSS contracts and will ensure a consistent basis for
delivery terms across the FSS program.
Respondent: The respondent listed a number of provisions and
clauses that were not included in the proposed rule, asking if the
clauses not included in this rule would be deleted entirely or
published for comments and an IRFA analysis conducted to determine the
costs and economic impact on small businesses.
GSA Response: The absence of existing provisions and clauses in the
final rule does not necessarily mean they are being deleted from FSS
solicitations. Any attempt to incorporate new provisions and clauses
will be addressed in a separate GSAR case and an IRFA analysis will be
conducted at such time. GSA performed an in-depth analysis of all FSS
provisions and clauses and after careful consideration decided to only
include the most-used, non-complex clauses in this GSAR case.
Respondent: Is there any plan by FAS to ensure streamlined
solicitations are in compliance with FAR 12.603 for Commercial Items?
GSA Response: This case streamlines the solicitation process and
ensures the appropriate terms of the FAR commercial items requirements
are incorporated into FSS solicitations and contracts. Also, FSS
contracts already include FAR clause 52.212-5 and designate the
appropriate clauses and provisions.
Respondent: There are already FAR provisions/clauses to address
``English language'' and U.S. ``dollar'' requirements.
GSA Response: The ``English language'' and U.S. ``dollar''
requirements are included in the instructions for competitive
acquisitions (FAR clause 52.215-1). FSS uses commercial item
acquisition instructions (52.212-1) and therefore must specify this
requirement as a separate clause.
Respondent: GSA's proposed GSAR clause Contractor's Billing
Responsibilities appears to be in conflict with FAR. How are dealers
permitted to bill ordering activities if payments are tied to the
contractor's EFT in SAM?
GSA Response: The FAR does not currently provide coverage for the
contractor's relationship with their participating dealers. The terms
of EFT, as it relates to the SAM registration, are covered by FAR
clause 52.204-7 and only apply to the prime contractor relationship.
Respondent: GSA's proposed clause Deliveries Beyond the Contractual
Period--Placing of Orders appears to be duplicative or inconsistent
with FAR 52.216-22(d). The prescription calls for use in all FSS
solicitations and contracts for supplies. However, the clause itself
says in accordance with clause Scope of Contract (Eligible Ordering
Activities) which only applies to ``solicitations and contracts which
contain products and services determined by the Secretary of Homeland
Security to facilitate recovery from major disasters, terrorism, or
nuclear, biological, chemical, or radiological attack.'' So there
appears to be inconsistency here. Also which products/services has DHS
determined are approved for used by 'eligible ordering activities''? In
other words, which solicitations are COs supposed to include the Scope
of Contract (Eligible Ordering Activities) clause? How or when is that
determination to be made?
GSA Response: GSAR clause Deliveries Beyond the Contractual
Period--Placing Orders is not inconsistent or duplicative of FAR
52.216-22(d). This clause supplements the FAR by providing Contracting
Officers with specific instructions for such situations.
Subpart 538.7004 is revised in GSAR case 2010-G511 Purchasing by
Non-Federal Entities, 81 FR 36425 effective July 6, 2016, to state
``The contracting officer shall insert the clause, Scope of Contract
(Eligible Ordering Activities), in solicitations and contracts for all
Federal Supply Schedules.''
In December 2006, DHS Memo 06-11884, stipulated that all goods and
services available on GSA Federal Supply Schedules qualified as goods
[[Page 17037]]
and services to be used to facilitate recovery from a major disaster
declared by the President under the Robert T Stafford Disaster Relief
and Emergency Act, or to facilitate recovery from terrorism or nuclear,
biological, chemical, or radiological attack. The memo was signed by
the then Secretary of Homeland Security Michael Chertoff.
3. Comments on Paperwork Reduction Act and Regulatory Flexibility Act
Respondent: Please address several collections of information,
mandated for submittal in all FSS solicitations, which do not appear to
be listed in OMB's current Inventory of Approved Information
Collections on reginfo.gov as part of the IRFA analysis.
GSA Response: The IRFA describes the impact of the proposed rule on
small entities. It does not break the clauses down individually. GSAR
case 2013-G502, which incorporates a number of provisions and clauses
currently in use in FSS solicitations and contracts, includes an IRFA
that took into consideration all of the applicable clauses and
provisions that may impact small entities. The requirements described
in this comment are not part of the provisions and clauses on which
this rule seeks feedback. The collection requirements included in this
comment are included in OMB Control 3090-0163. No changes were made to
the rule as a result of this comment.
Respondent: The methodology for estimating Paperwork Burdens is
flawed resulting in a significant underestimation of the burden imposed
by the rule.
GSA Response: GSA has outlined its methodology for calculating the
burden estimates in the information collection supporting statement.
Since no specific information on how the methodology is flawed was
provided, no changes were made to the rule as a result of this comment.
Respondent: Clarify what information collection requirements are
being referred to in GSAR clause Information Collection Requirements
and comment on whether this provision would be accurate in all FSS
solicitations as proposed.
GSA Response: The information collection associated with this
clause, OMB control number 3090-0163, is for information specific to a
contract or contracting action, not required by regulation. The
supporting statement for this information collection notes it is
``associated with GSA's information collection requirements contained
in solicitations issued in accordance with the Uniform Contract Format
under FAR Part 14, Sealed Bidding (see GSAR 514.201-1); FAR Part 15,
Contracting by Negotiation (see GSAR 515.204-1); and solicitations
under FAR Part 12, Acquisition of Commercial Items, when issued in
accordance with the policy and procedures of FAR Part 14 and FAR Part
15 (see GSAR 512.301). This includes information collection
requirements found in GSA Federal Supply Schedule (FSS)
solicitations.''
4. Comments Outside the Scope of the Rule
Respondent: There is no GSAR clause that mandates contractors be
subjected routinely to Contractor Assistance Visits (CAV). I recommend
GSA create a clause to indicate it is mandatory, conduct the IRFA
analysis of cost burden and impact on small businesses, and the CAV
requirements.
GSA Response: This suggestion is outside the scope of the current
rule as this rule focuses on publishing non-complex provisions and
clauses, updating administrative matters, and restructuring the GSAR to
be more consistent with the FAR in terms of the FSS program. Contractor
Assessments are conducted under GSAR clause Examination of Records by
GSA (Federal Supply Schedules). GSA examines the cost burden and impact
of CAVs on vendors in the PRA of the GSAR Examination of Records
clause.
Respondent: There are significant clauses covered by the rule that
should be the subject of a separate rule-making, such as the Price
Reduction clause. Including such provisions in this massive collection
of clauses does not offer the opportunity to propose changes in this
important area.
GSA Response: The Price Reductions clause is not being changed as a
result of this rule. Comments on the substance of this clause are
considered outside the scope of this rule. No changes were made to the
rule as a result of this comment.
Respondent: The current GSAR does not contain the proposed GSAR
Clause Discounts for Prompt Payment referenced in the proposed rule.
The proposed clause should be included for public comment in a
subsequent rulemaking. The clause appears complicated, and its purpose
is not clear. Prompt payment discounts should be disclosed in the CSPF.
Whether the contractor offers them to the government, or the
contracting officer accepts them, should be subject to negotiation. The
Government can advise its contracting staff of factors to consider
without adding another clause to the contract.
GSA Response: Clause Discounts for Prompt Payment (Federal Supply
Schedules) was previously included in the GSAR at 552.232-8. The clause
is unchanged from the previous version and is now reinstated under
538.273 and 552.238-84. No changes were made to the rule as a result of
this comment.
Respondent: Proposed GSAR prescription 538.273(d) directs use of
the clause Submission and Distribution of Authorized Federal Supply
Schedule (FSS) Price Lists, which requires distribution of a paper
price list. This is an opportunity for GSA to eliminate a requirement
in light of the extensive electronic reporting required of contractors.
GSA Response: GSAR clause Submission and Distribution of Authorized
Federal Supply Schedule (FSS) Price Lists is not being revised by this
rule; therefore, this comment is outside the scope of this case. No
changes were made to the rule as a result of this comment.
Respondent: The text of GSAR clause Cancellation, which ``provides
instructions to the Offeror on canceling its FSS contracts,'' should be
corrected to reflect that the clause is intended for use by contractors
only. Additional text in the clause, which indicates that the
Government will not reimburse the minimum guarantee if the contractor
elects to cancel the contract, violates FAR 16.501-2(b)(3) that the
Government's ``obligation'' in IDIQ contracts is ``to the minimum
quantity specified in the contract''.
GSA Response: The text of the clause questioned is not being
revised; therefore, the comments are not within the scope of this case.
However, GSA will take the comments into consideration for potentially
addressing in a separate case. No changes were made to the rule as a
result of this comment.
Respondent: GSA's Examination of Records by GSA (Federal Supply
Schedules) clause, appears to be in conflict with FAR 52.212-4
Alternate I's ``access to records,'' which is limited to service
contracts and restricts access to timecards to verify labor hours
charged and, in the case of a cost-reimbursable T&M contract, invoices
to certify material costs. Also, recommend addressing the ``Report
Card'' by COs into CPARs and the cost to the Government for the IOAs
travel to and preparation for visits with contractors.
GSA Response: The text of the clause questioned is not being
revised; therefore, the comments are not within the scope of this case.
However, GSA will take the comments into consideration for potentially
addressing in a separate case. No changes were
[[Page 17038]]
made to the rule as a result of this comment.
III. Executive Orders 12866 and 13563
Executive Orders (E.O.) 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.
This is not a significant regulatory action and, therefore, was not
subject to review under section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993. This rule is not a major rule
under 5 U.S.C. 804.
IV. Executive Order 13771
This final rule is not subject to E.O. 13771, because this rule is
not a significant regulatory action under E.O. 12866.
V. Regulatory Flexibility Act
This final rule will not 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 rule
will incorporate a number of provisions and clauses that are currently
in use in FSS solicitations and contracts and most contractors are
familiar with and are currently complying with these practices.
Although this rule does not have a significant impact on a substantial
number of small entities, GSA prepared an Initial Regulatory
Flexibility Analysis (IRFA) in conjunction with the proposed rule. As a
result, GSA has also prepared a Final Regulatory Flexibility Analysis
(FRFA) consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et
seq.
The FRFA is summarized as follows:
This FRFA has been prepared consistent with the criteria of 5
U.S.C. 604.
There are approximately 14,674 \4\ FSS contracts that are
affected by this change. Of these, approximately eighty percent
(11,739) of FSS contracts are held by small businesses. The rule is
unlikely to affect small businesses awarded GSA FSS contracts as it
implements a number of provisions and clauses currently in use in
FSS solicitations and contracts, yet not vetted via public comment.
The information collected is used by FAS to evaluate vendors'
offers, ordering activities when placing orders against the
contract, and other FSS vendors to conduct market research when
submitting proposals. Therefore, this rule does not pose any new
projected reporting, recordkeeping, or additional compliance
requirements. Bringing these regulations into the GSAR consolidates
all regulations into one area, allowing for any future changes to
receive public comment.
---------------------------------------------------------------------------
\4\ FY18 Active Schedule contract holders.
---------------------------------------------------------------------------
There are a total of 31 Schedules, with 14 possessing an array
of Special Item Numbers (SINs) set-aside for small businesses.
Overall, small businesses have benefited from GSA providing access
to the Federal marketplace via the Pre-award phase (Pathway to
Success), the Post-award phase (New Contractor Orientation), and
Contractor Assessments. FSS contracts are negotiated as volume
purchase agreements, with generally very favorable pricing. The
ability of small businesses to receive awards under the FSS Program
has enabled them to grow in the Federal marketplace as well as
realize significant cost savings.
There were no comments filed by the Chief Counsel for Advocacy of
the Small Business Administration in response to the rule. The
Regulatory Secretariat will submit 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.
VI. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) applies. The
rule implements a number of provisions and clauses currently in use in
FSS solicitations and contracts that contain information collection
requirements. The requirements are not new, but have not previously
been approved by OMB. The information collected is used by FAS to
evaluate vendors' offers, ordering activities when placing orders
against the contract, and other FSS vendors to conduct market research
when submitting proposals.
The annual total public reporting burden for this collection of
information is estimated to be 38,674 total hours ($1,819,998.44),
including the time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and completing and
reviewing the collection of information. Annual reporting burdens
include the estimated respondents with one (1) submission per
respondent multiplied by preparation hours per response to get the
total response burden hours. The estimated cost of $47.06 ($34.54 +
$12.52) per hour is applied to the burden hours based on the task being
accomplished by mid-level contractor personnel equivalent to a GS-12,
Step 5 salary (Base Pay and Rest of U.S. Locality Pay) (Salary Table
2018-GS, Effective January 2018), with fringe of 36.25% (OMB Memo M-08-
13). The estimated burden to the public for the below clauses are as
follows:
The reinstated GSAR clause 552.238-84 Discounts for Prompt Payment
requires the offeror to provide the Government a discount for early
payment, if applicable.
Respondents: 14,674.
Responses per respondent: 1.
Total annual responses: 14,674.
Preparation hours per response: 1.0 (1 hr.).
Total response burden hours: 14,674.
Cost per hour: $47.06
Estimated cost burden to the public: $690,558.44
The new GSAR clause 552.238-87 Delivery Prices requires the offeror
to identify the intended geographic area(s)/countries/zones that are to
be covered.
Respondents: 8,000.
Responses per respondent: 1.
Total annual responses: 8,000.
Preparation hours per response: .50 (30 minutes).
Total response burden hours: 4,000.
Cost per hour: $47.06
Estimated cost burden to the public: $188,240.00
The new GSAR clause 552.238-95 Separate Charge for Performance
Oriented Packaging requires the offeror to list any separate charge for
preservation, packaging, packing and marking, and labeling of domestic
and overseas HAZMAT surface shipments.
Respondents: 8,000.
Responses per respondent: 1.
Total annual responses: 8,000.
Preparation hours per response: .50 (30 minutes).
Total response burden hours: 4,000.
Cost per hour: $47.06.
Estimated cost burden to the public: $188,240.00.
The new GSAR clause 552.238-96 Separate Charge for Delivery within
Consignee's Premises requires the offeror to list any separate cost for
shipping when the delivery is within the consignee's premises
(inclusive of items that are comparable in size and weight).
Respondents: 8,000.
Responses per respondent: 1.
Total annual responses: 8,000.
Preparation hours per response: .50(30 minutes).
Total response burden hours: 4,000.
Cost per hour: $47.06.
Estimated cost burden to the public: $188,240.00.
The new GSAR clause 552.238-97 Parts and Service requires the
offeror to include in the price list, the names and addresses of all
supply and service points maintained in the geographic area in which
the offeror will perform, whether or not a complete stock of repair
parts for items offered is carried
[[Page 17039]]
at that point, and whether or not mechanical service is available.
Respondents: 8,000.
Responses per respondent: 1.
Total annual responses: 8,000.
Preparation hours per response: .50 (30 minutes).
Total response burden hours: 4,000.
Cost per hour: $47.06.
Estimated cost burden to the public: $188,240.00.
The new GSAR clause 552.238-99 Delivery Prices Overseas requires
the offeror to identify the intended geographic area(s)/countries/zones
which are to be covered.
Respondents: 8,000.
Responses per respondent: 1.
Total annual responses: 8,000.
Preparation hours per response: .50 (30 minutes).
Total response burden hours: 4,000.
Cost per hour: $47.06.
Estimated cost burden to the public: $188,240.00.
The new GSAR clause 552.238-111 Environmental Protection Agency
Registration Requirement requires the offeror to list the
manufacturer's and/or distributor's name and EPA Registration Number
for each item requiring registration with the EPA.
Respondents: 8,000.
Responses per respondent: 1.
Total annual responses: 8,000.
Preparation hours per response: .50 (30 minutes).
Total response burden hours: 4,000.
Cost per hour: $47.06.
Estimated cost burden to the public: $188,240.00.
The reinstated GSAR clause 552.238-85 Contractor's Billing
Responsibilities contains a recordkeeping requirement that is subject
to the Paperwork Reduction Act (44 U.S.C. 3501, et seq.). The clause
provides for the contractor to require all dealers participating in the
performance of the contract to agree to maintain certain records on
sales made under the contract on behalf of the contractor. However, it
does not add burden to what is already estimated for GSAR clause
552.238-80 Industrial Funding Fee and Sales Reporting under OMB Control
Number 3090-0121 Industrial Funding Fee and Sales Reporting.
GSA solicited public comments on this information collection
requirement at the proposed rule stage. In response, three public
comments were received and are addressed in Section B. Analysis of
Public Comments. GSA will submit to OMB a request to review and approve
this new information collection requirement. For a copy of the
information collection documents, contact the Regulatory Secretariat by
mail at 1800 F Street NW, Washington, DC 20405, or by phone at 202-501-
4755. Please cite OMB Control Number 3090-0303, (GSAR) Administrative
Changes; GSAR Case 2013-G502, in all correspondence.
List of Subjects in 48 CFR Parts 501, 515, 538, and 552
Government procurement.
Jeffrey Birch,
Acting Senior Procurement Executive, Office of Acquisition Policy,
Office of Government-wide Policy.
For the reasons described in the preamble, GSA amends 48 CFR parts
501, 515, 538, and 552 as set forth below:
0
1. The authority citation for 48 CFR parts 501, 515, 538, and 552
continues to read as follows:
Authority: 40 U.S.C. 121(c).
PART 501--GENERAL SERVICES ADMINISTRATION ACQUISITION REGULATION
SYSTEM
0
2. Amend section 501.106 in the table by--
0
a. Revising the entry for ``538.273(a)(1)'' to read ``538.273'' and
revising the OMB control number;
0
b. Removing the entries for ``538.273(a)(3)'' and ``538.273(b)(1)'';
0
c. Revising the GSAR references ``552.238-70'', ``552.238-72'',
552.238-74'', and ``552.238-81'' to read ``552.238-73'', ``552.238-
78'', ``552.238-80'', and ``552.238-82'', respectively;
0
d. Adding in numerical sequence entries for ``552.238-84'', ``552.238-
85'', ``552.238-87'', ``552.238-95'', ``552.238-95'', ``552.238-97'',
``552.238-99'', and ``552.238-111''.
The revision and additions read as follows:
501.106 OMB approval under the Paperwork Reduction Act.
------------------------------------------------------------------------
OMB control
GSAR reference No.
------------------------------------------------------------------------
* * * * *
538.273................................................. 3090-0250
3090-0262
3090-0121
3090-0303
3090-0306
* * * * *
552.238-73.............................................. 3090-0250
552.238-78.............................................. 3090-0262
552.238-80.............................................. 3090-0121
3090-0306
552.238-82.............................................. 3090-0302
552.238-84.............................................. 3090-0303
552.238-85.............................................. 3090-0121
3090-0306
552.238-87.............................................. 3090-0303
552.238-95.............................................. 3090-0303
552.238-96.............................................. 3090-0303
552.238-97.............................................. 3090-0303
552.238-99.............................................. 3090-0303
552.238-111............................................. 3090-0303
* * * * *
------------------------------------------------------------------------
PART 515--CONTRACTING BY NEGOTIATION
515.209-70 [Amended]
0
3. Amend section 515.209-70 by removing the subheading ``Clause for
Multiple Award Schedules'' and paragraphs (c) and (d).
515.408 [Amended]
0
4. Amend section 515.408 by--
0
a. Removing from paragraphs (a)(2), (b) introductory text, and (c)
introductory text ``basic clause 552.238-74'' and adding ``basic clause
552.238-80'' in its place;
0
b. Removing from paragraph (c) Figure 515.4 ``clause at 552.238-75''
and adding ``clause at 552.238-81'' in its place; and
0
c. Removing from paragraph (d) ``basic clause 552.238-74'' and adding
``basic clause 552.238-80'' in its place.
PART 538--FEDERAL SUPPLY SCHEDULE CONTRACTING
0
5. Amend section 538.270 by revising the section heading to read as
follows:
538.270 Evaluation of Federal Supply Schedule (FSS) offers.
* * * * *
0
6. Amend section 538.271 by--
0
a. Revising the section heading;
0
b. Removing from paragraph (a) ``MAS awards'' and adding ``FSS awards''
in its place; and
0
c. Removing from paragraph (b) ``MAS contract'' and adding ``FSS
contract'' in its place.
The revision reads as follows:
538.271 FSS contract awards.
* * * * *
0
7. Amend 538.272 by--
0
a. Revising the section heading;
0
b. Removing from paragraph (a) ``basic clause 552.238-74'' and adding
``basic clause 552.238-80'' in its place; and
0
c. Removing from paragraph (b) ``Alternate I of 552.238-75'' and adding
``Alternate I of 552.238-81'' in its place.
The revision reads as follows:
538.272 FSS price reductions.
* * * * *
0
8. Revise section 538.273 to read as follows:
[[Page 17040]]
538.273 FSS solicitation provisions and contract clauses.
(a) As prescribed in this paragraph, insert the following
provisions in the beginning of FSS solicitations:
(1) 552.238-70, Cover Page for Worldwide Federal Supply Schedules.
Use in all FSS solicitations. Use Alternate I for single award Federal
Supply Schedules.
(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) As prescribed in this paragraph, insert the following clause
and provision as an addendum to 52.212-1, Instructions to Offerors--
Commercial Items:
(1) 552.238-73, Identification of Electronic Office Equipment
Providing Accessibility for the Handicapped. Use only in FSS
solicitations for electronic office equipment.
(2) 552.238-74, Introduction of New Supplies/Services (INSS). Use
only in FSS 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) As prescribed in this paragraph, insert the following
provisions as an addendum to 52.212-2, Evaluation--Commercial Items:
(1) 552.238-75, Evaluation--Commercial Items (Federal Supply
Schedules). Use in FSS standing solicitations.
(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) As prescribed in this paragraph, insert the following clauses
as an addendum to Clause 52.212-4, Contract Terms and Conditions-
Commercial Items:
(1) 552.238-77, Submission and Distribution of Authorized FSS Price
Lists. Use in all FSS solicitations and contracts.
(2) 552.238-78, Identification of Products that have Environmental
Attributes. Use only in FSS solicitations and contracts that
contemplate items with environmental attributes.
(3) 552.238-79, Cancellation. Use in all FSS solicitations and
contracts.
(4) 552.238-80, Industrial Funding Fee and Sales Reporting. Use
Alternate I for Federal Supply Schedules with Transactional Data
Reporting requirements. Clause 552.238-75 Alternate I should also be
used when vendors agree to include clause 552.238-74 Alternate I in the
contract.
(5) 552.238-81, Price Reductions. Use Alternate I for Federal
Supply Schedules with Transactional Data Reporting requirements. This
alternate clause is used when vendors agree to include clause 552.238-
74 Alternate I in the contract.
(6) 552.238-82, Modifications (Federal Supply Schedules). Use in
all FSS solicitations and contracts.
(i) Use Alternate I for Federal Supply Schedules that only accept
eMod.
(ii) Use Alternate II for Federal Supply Schedules with
Transactional Data Reporting requirements. This alternate clause is
used when vendors agree to include clause 552.238-74 Alternate I in the
contract.
(7) 552.238-83, Examination of Records by GSA (Federal Supply
Schedules). Use in all FSS solicitations and contracts. With the Senior
Procurement's Executive approval, the contracting officer may modify
this clause to provide for post-award access to and the right to
examine records to verify that the pre-award/modification pricing,
sales or other data related to the supplies or services offered under
the contract which formed the basis for the award/modification was
accurate, current, and complete. The following procedures apply:
(i) Such a modification of the clause must provide for the right of
access to expire 2 years after award or modification.
(ii) Before modifying the clause, the contracting officer must make
a determination that absent such access there is a likelihood of
significant harm to the Government and submit it to the Senior
Procurement Executive for approval.
(iii) The determinations under paragraph (9)(ii) must be made on a
schedule-by-schedule basis.
(8) 552.238-84, Discounts for Prompt Payment. Use in all FSS
solicitations and contracts.
(9) 552.238-85, Contractor's Billing Responsibilities. Use in all
FSS solicitations and contracts.
(10) 552.238-86, Delivery Schedule. Use only in FSS solicitations
and contracts for supplies.
(11) 552.238-87, Delivery Prices. Use in all FSS solicitations and
contracts.
(12) 552.238-88, GSA Advantage![supreg]. Use in all FSS
solicitations and contracts except the Department of Veterans Affairs
Federal Supply Schedules.
(13) 552.238-89, Deliveries to the U.S. Postal Service. Use only in
FSS solicitations and contracts 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 in
FSS solicitations and contracts when the supply of equipment which uses
electrical current is contemplated.
(15) 552.238-91, Marking and Documentation Requirements for
Shipping. Use only in FSS solicitations and contracts 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
in FSS solicitations and contracts for supplies when a VMI Program is
contemplated.
(17) 552.238-93, Order Acknowledgement. Use only in FSS
solicitations and contracts for supplies.
(18) 552.238-94, Accelerated Delivery Requirements. Use only in FSS
solicitations and contracts for supplies.
(19) 552.238-95, Separate Charge for Performance Oriented Packaging
(POP). Use only in FSS solicitations and contracts for items defined as
hazardous under Federal Standard No. 313.
(20) 552.238-96, Separate Charge for Delivery within Consignee's
Premises. Use only in FSS solicitations and contracts for supplies when
allowing offerors to propose separate charges for deliveries within the
consignee's premises.
(21) 552.238-97, Parts and Service. Use in all FSS solicitations
and contracts.
(22) 552.238-98, Clauses for Overseas Coverage. Use only in FSS
solicitations and contracts when overseas acquisition is contemplated.
The following clauses and provisions shall also be inserted in full
text, when applicable.
(i) 52.214-34 Submission of Offers in the English Language.
(ii) 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 Per
Shipment.
(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) 52.247-34 FOB Destination.
(x) 52.247-38 FOB Inland Carrier, Country of Exportation.
(xi) 52.247-39 FOB Inland Point, Country of Importation.
[[Page 17041]]
(23) 552.238-99, Delivery Prices Overseas. Use only in FSS
solicitations and contracts when overseas acquisition is contemplated.
(24) 552.238-100, Transshipments. Use only in FSS solicitations and
contracts when overseas acquisition is contemplated.
(25) 552.238-101, Foreign Taxes and Duties. Use only in FSS
solicitations and contracts when overseas acquisition is contemplated.
(26) 552.238-102, English Language and U.S. Dollar Requirements.
Use in all FSS solicitations and contracts.
(27) 552.238-103, Electronic Commerce. Use in all FSS solicitations
and contracts except the Department of Veterans Affairs Federal Supply
Schedules.
(28) 552.238-104, Dissemination of Information by Contractor. Use
in all FSS solicitations and contracts.
(29) 552.238-105, Deliveries Beyond the Contractual Period--Placing
of Orders. Use only in FSS solicitations and contracts for supplies.
(30) 552.238-106, Interpretation of Contract Requirements. Use in
all FSS solicitations and contracts.
(31) 552.238-107, Export Traffic Release (Supplies). Use in FSS
solicitations and contracts for supplies, except vehicles.
(32) 552.238-108, Spare Parts Kit. Use only in FSS solicitations
and contracts for items requiring spare part kits. This information is
to be specified at the order level.
(33) 552.238-109, Authentication Supplies and Services. Use in
Federal Supply Schedule 70 solicitations only, and only contracts
awarded Special Item Numbers (SINs) associated with the Homeland
Security Presidential Directive 12 (HSPD-12).
(34) 552.238-110, Commercial Satellite Communication (COMSATCOM)
Services. Use only in FSS solicitations and contracts for COMSATCOM
services.
(35) 552.238-111, Environmental Protection Agency Registration
Requirement. Use only in FSS solicitations and contracts for supplies
when items may require registration with the Environmental Protection
Agency.
538.7001 [Amended]
0
9. Amend section 538.7001 by removing from the definition ``Ordering
activity'' ``(see 552.238-78)'' and adding ``(see 552.238-113)'' in its
place.
538.7004 [Amended]
0
10. Amend section 538.7004 by--
0
a. Removing from paragraph (a) ``the clause at 552.238-77'' and adding
``the clause at 552.238-112'' in its place;
0
b. Removing from paragraph (b) ``the clause at 552.238-78'' and adding
``the clause at 552.238-113'' in its place; and
0
c. Removing from paragraph (c) ``the clause at 552.238-79'' and adding
``the clause at 552.238-114'' in its place.
PART 552-SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
11. Amend section 552.212-71 by revising the date of the clause and
paragraph (b) to read as follows:
552.212-71 Contract Terms and Conditions Applicable to GSA Acquisition
of Commercial Items.
* * * * *
Contract Terms and Conditions Applicable to GSA Acquisition of
Commercial Items (May 2019)
* * * * *
(b) Clauses.
552.203-71 Restriction on Advertising
552.211-73 Marking
552.215-70 Examination of Records by GSA
552.215-72 Price Adjustment-Failure to Provide Accurate Information
552.219-70 Allocation of Orders-Partially Set-Aside Items
552.228-70 Workers' Compensation Laws
552.229-70 Federal, State, and Local Taxes
552.232-23 Assignment of Claims
552.232-71 Adjusting Payments
552.232-72 Final Payment
552.232-73 Availability of Funds
552.232-78 Payment Information
552.237-71 Qualifications of Employees
552.242-70 Status Report of Orders and Shipments
552.246-76 Warranty of Pesticides
* * * * *
0
12. Amend section 552.212-72 by revising the date of the clause and
paragraph (b) to read as follows:
552.212-72 Contract Terms and Conditions Required To Implement
Statutes or Executive Orders Applicable to GSA Acquisition of
Commercial Items.
* * * * *
Contract Terms and Conditions Required To Implement Statutes or
Executive Orders Applicable to GSA Acquisition of Commercial Items (May
2019)
* * * * *
(b) Clauses.
_552.223-70 Hazardous Substances.
_552.223-71 Nonconforming Hazardous Material.
_552.223-73 Preservation, Packaging, Packing, Marking and Labeling
of Hazardous Materials (HAZMAT) for Shipments.
_552.238-73 Identification of Electronic Office Equipment Providing
Accessibility for the Handicapped.
_552.238-78 Identification of Products That Have Environmental
Attributes.
* * * * *
552.215-71 [Removed and Reserved]
0
13. Remove and reserve section 552.215-71.
0
14. Revise sections 552.238-70 through 552.238-75 to read as follows:
Sec.
* * * * *
552.238-70 Cover Page for Worldwide Federal Supply Schedules.
552.238-71 Notice of Total Small Business Set-Aside.
552.238-72 Information Collection Requirements.
552.238-73 Identification of Electronic Office Equipment Providing
Accessibility for the Handicapped.
552.238-74 Introduction of New Supplies/Services (INSS).
552.238-75 Evaluation--Commercial Items (Federal Supply Schedule).
* * * * *
552.238-70 Cover Page for Worldwide Federal Supply Schedules.
As prescribed in 538.273(a)(1), insert the following provision:
Cover Page for Worldwide Federal Supply Schedules (May 2019)
For All Geographic Areas
Solicitation No. [The contracting officer should insert the
solicitation number here]*__*
Federal Supply Schedule Contract for All Geographic Areas [For
supplies, the Contracting Officer should complete the information
required by paragraph (a) and delete paragraph (b) in its entirety.
For services, the Contracting Officer should complete the
information required by paragraph (b) and delete (a) in its
entirety. For solicitations containing both supplies and services,
the Contracting Officer should complete paragraphs (a) and (b).]
(a) Federal Supply Classification (FSC) GROUP *__* PART *__*
SECTION *__*
SUPPLY: *__* FSC CLASS(ES)/PRODUCT CODE(S)/NAICS: *__*
(b) STANDARD INDUSTRY GROUP: *__* SERVICE: *__* SERVICE CODE(S)/
NAICS: *__*
(End of provision)
Alternate I (May 2019): As prescribed at 538.273(a)(1)(i), add the
following paragraph (c) to the basic provision.
(c) PERIOD: *__* THROUGH *__*
552.238-71 Notice of Total Small Business Set-Aside.
As prescribed in 538.273(a)(2), insert the following provision:
Notice of Total Small Business Set-Aside (May 2019)
FAR clause 52.219-6, Notice of Total Small Business Set-Aside
applies to the following:
[[Page 17042]]
[The contracting officer should insert the special item numbers
(SINs) set aside for small businesses] *__*.
(End of provision)
552.238-72 Information Collection Requirements.
As prescribed in 538.273(a)(3), insert the following provision:
Information Collection Requirements (May 2019)
The information collection requirements contained in this
solicitation/contract are either required by regulation or approved
by the Office of Management and Budget pursuant to the Paperwork
Reduction Act and assigned OMB Control No. 3090-0163.
(End of provision)
552.238-73 Identification of Electronic Office Equipment Providing
Accessibility for the Handicapped.
As prescribed in 538.273(b)(1), insert the following clause:
Identification of Electronic Office Equipment Providing Accessibility
for the Handicapped (May 2019)
(a) Definitions. ``Electronic office equipment accessibility''
means the application/configuration of electronic office equipment
(includes hardware, software and firmware) in a manner that
accommodates the functional limitations of individuals with
disabilities (i.e., handicapped individuals) so as to promote
productivity and provide access to work related and/or public
information resources.
``Handicapped individuals'' mean qualified individuals with
impairments as cited in 29 CFR 1613.702(f) who can benefit from
electronic office equipment accessibility.
``Special peripheral'' means a special needs aid that provides
access to electronic equipment that is otherwise inaccessible to a
handicapped individual.
(b) The offeror is encouraged to identify in its offer, and
include in any commercial catalogs and pricelists accepted by the
Contracting Officer, office equipment, including any special
peripheral, that will facilitate electronic office equipment
accessibility for handicapped individuals. Identification should
include the type of disability accommodated and how the users with
that disability would be helped.
(End of clause)
552.238-74 Introduction of New Supplies/Services (INSS).
As prescribed in 538.273(b)(2), insert the following provision:
Introduction of New Supplies/Services (INSS) (May 2019)
(a) Definition.
Introduction of New Supplies/Services Special Item Number (INSS
SIN) means a new or improved supply or service--within the scope of
the Federal Supply Schedule (FSS), but not currently available under
any Federal Supply Schedule contract--that provides a new service,
function, task, or attribute that may provide a more economical or
efficient means for ordering activities to accomplish their
missions. It may significantly improve an existing supply or
service. It may be a supply or service existing in the commercial
market, but not yet introduced to the Federal Government.
(b) Offerors are encouraged to introduce new or improved
supplies or services via INSS SIN at any time by clearly identify
the INSS SIN item in the offer.
(c) The Contracting Officer has the sole discretion to determine
whether a supply or service will be accepted as an INSS SIN item.
The Contracting Officer will evaluate and process the offer and may
perform a technical review. The INSS SIN provides temporary
placement until the Contracting Officer formally categorizes the new
supply or service.
(d) If the Contractor has an existing schedule contract, the
Government may, at the sole discretion of the Contracting Officer,
modify the existing contract to include the INSS SIN item in
accordance with 552.238-81, Modifications (Federal Supply
Schedules).
(End of provision)
552.238-75 Evaluation--Commercial Items (Federal Supply Schedule).
As prescribed in 538.273(c)(1), insert the following provision:
Evaluation--Commercial Items (Federal Supply Schedule) (May 2019)
(a) The Government may make multiple awards for the supplies or
services offered in response to this solicitation that meet the
definition of a ``commercial item'' in FAR 52.202 1. Awards may be
made to those responsible offerors that offer reasonable pricing,
conforming to the solicitation, and will be most advantageous to the
Government, taking into consideration the multiplicity and
complexity of items of various manufacturers and the differences in
performance required to accomplish or produce required end results,
production and distribution facilities, price, compliance with
delivery requirements, and other pertinent factors. By providing a
selection of comparable supplies or services, ordering activities
are afforded the opportunity to fulfill their requirements with the
item(s) that constitute the best value and that meet their needs at
the lowest overall cost.
(b) A written notice of award or acceptance of an offer, mailed
or otherwise furnished to the offeror within the time for acceptance
specified in the offer, shall result in a binding contract without
further action by either party. Before the offer's specified
expiration time, the Government may accept an offer (or part of an
offer), whether or not there are negotiations after its receipt,
unless a written notice of withdrawal is received before award.
(End of provision)
0
15. Add section 552.238.76 to read as follows:
552.238-76 Use of Non-Government Employees to Review Offers.
As prescribed in 538.273(c)(2), insert the following provision:
Use of Non-Government Employees to Review Offers (May 2019)
(a) The Government may employ individual technical consultants/
advisors/contractors from the below listed organizations to review
limited portions of the technical, management and price proposals to
assist the government in both pre-award and post-award functions.
[The contracting officer should insert a list of organizations used
to review solicitation responses and execute a non-disclosure and
organizational conflict of interest statement for all individuals
conducting reviews.]
*__*
(b) These representatives will be used to advise on specific
technical, management, and price matters and shall not, under any
circumstances, be used as voting evaluators. However, the Government
may consider the advice provided in its evaluation process. In
addition, Contractor personnel may be used in specific contract
administration tasks (e.g., administrative filing, review of
deliverables, etc.).
(c) If individual technical consultants/advisors/contractors are
utilized as described in (b) above, they will be required to execute
a non-disclosure and organizational conflict of interest statements.
(End of provision)
0
16. Revise sections 552.238-77 through 552.238-79 to read as follows:
Sec.
* * * * *
552.238-77 Submission and Distribution of Authorized Federal Supply
Schedule (FSS) Price Lists.
552.238-78 Identification of Products that Have Environmental
Attributes.
552.238-79 Cancellation.
* * * * *
552.238-77 Submission and Distribution of Authorized Federal Supply
Schedule (FSS) Price Lists.
As prescribed in 538.273(d)(1), insert the following clause:
Submission and Distribution of Authorized Federal Supply Schedule (FSS)
Price Lists (May 2019)
(a) Definition. For the purposes of this clause, the Mailing
List is [Contracting officer shall insert either: ``the list of
addressees provided to the Contractor by the Contracting Officer''
or ``the Contractor's listing of its Federal Government
customers''].
(b) The Contracting Officer will return one copy of the
Authorized FSS Schedule Pricelist to the Contractor with the
notification of contract award.
(1) The Contractor shall provide to the GSA Contracting Officer:
(i) Two paper copies of Authorized FSS Schedule Pricelist; and
(ii) The Authorized FSS Schedule Pricelist on a common-use
electronic medium. The
[[Page 17043]]
Contracting Officer will provide detailed instructions for the
electronic submission with the award notification. Some structured
data entry in a prescribed format may be required.
(2) The Contractor shall provide to each addressee on the
mailing list either;
(i) One paper copy of the Authorized FSS Schedule Price List; or
(ii) A self-addressed, postage-paid envelope or postcard to be
returned by addressees that want to receive a paper copy of the
pricelist. The Contractor shall distribute price lists within 20
calendar days after receipt of returned requests.
(3) The Contractor shall advise each addressee of the
availability of pricelist information through the online Multiple
Award Schedule electronic data base.
(c) The Contractor shall make all of the distributions required
in this paragraph (c) at least 15 calendar days before the beginning
of the contract period, or within 30 calendar days after receipt of
the Contracting Officer's approval for printing, whichever is later.
(d) During the period of the contract, the Contractor shall
provide one copy of its Authorized FSS Schedule Pricelist to any
authorized schedule user, upon request. Use of the mailing list for
any other purpose is not authorized.
(End of clause)
Alternate I (May 2019). As prescribed in 538.273(a)(2), substitute
the following paragraph (a) for paragraph (a) of the basic clause:
(a) Definition. For the purposes of this clause, the Mailing
List is [Contracting officer shall insert either: ``the list of
addressees provided to the Contractor by the Contracting Officer''
or ``the Contractor's listing of its ordering activity customers''].
552.238-78 Identification of Products that Have Environmental
Attributes.
As prescribed in 538.273(d)(2), insert the following clause:
Identification of Products That Have Environmental Attributes (May
2019)
(a) Several laws, Executive orders, and Agency directives
require Federal buyers to purchase products that are less harmful to
the environment, when they are life cycle cost-effective (see FAR
Subpart 23.7). The U.S. General Services Administration (GSA)
requires contractors to highlight environmental products under
Federal Supply Service schedule contracts in various communications
media (e.g., publications and electronic formats).
(b) Definitions. As used in this clause--
Energy-efficient product means a product that--
(1) Meets Department of Energy and Environmental Protection
Agency criteria for use of the ENERGY STAR[supreg] trademark label;
or
(2) Is in the upper 25 percent of efficiency for all similar
products as designated by the Department of Energy's Federal Energy
Management Program.
GSA Advantage! is an on-line shopping mall and ordering system
that provides customers with access to products and services under
GSA contracts.
Other environmental attributes refers to product characteristics
that provide environmental benefits, excluding recovered materials
and energy and water efficiency. Several examples of these
characteristics are biodegradable, recyclable, reduced pollutants,
ozone safe, and low volatile organic compounds (VOCs).
Post-consumer material means a material or finished product that
has served its intended use and has been discarded for disposal or
recovery, having completed its life as a consumer item. Post-
consumer material is part of the broader category of ``recovered
material.'' The Environmental Protection Agency (EPA) has developed
a list of EPA-designated products in their Comprehensive Procurement
Guidelines (CPGs) to provide Federal agencies with purchasing
recommendations on specific products in a Recovered Materials
Advisory Notice (RMAN). The RMAN contains recommended recovered and
post-consumer material content levels for the specific products
designated by EPA (40 CFR part 247 and https://www.epa.gov/cpg/).
Recovered materials means waste materials and by-products
recovered or diverted from solid waste, but the term does not
include those materials and by-products generated from, and commonly
reused within, an original manufacturing process (Executive Order
13101 and 42 U.S.C. 6903(19) and https://www.epa.gov/cpg/). For paper
and paper products, see the definition at FAR 11.301 (42 U.S.C.
6962(h)).
Remanufactured means factory rebuilt to original specifications.
Renewable energy means energy produced by solar, wind,
geothermal, and biomass power.
Renewable energy technology means--
(1) Technologies that use renewable energy to provide light,
heat, cooling, or mechanical or electrical energy for use in
facilities or other activities; or
(2) The use of integrated whole-building designs that rely upon
renewable energy resources, including passive solar design.
(c) Identification requirements. (1) The offeror must identify
products that--
(i) Are compliant with the recovered and post-consumer material
content levels recommended in the Recovered Materials Advisory
Notices (RMANs) for EPA-designated products in the CPG program
(https://www.epa.gov/cpg/);
(ii) Contain recovered materials that either do not meet the
recommended levels in the RMANs or are not EPA-designated products
in the CPG program (see FAR 23.401 and https://www.epa.gov/cpg/);
(iii) Are energy-efficient, as defined by either ENERGY
STAR[supreg] and/or FEMP's designated top 25th percentile levels
(see ENERGY STAR[supreg] at https://www.energystar.gov/ and FEMP at
https://www.eere.energy.gov/femp/procurement/);
(iv) Are water-efficient;
(v) Use renewable energy technology;
(vi) Are remanufactured; and
(vii) Have other environmental attributes.
(2) These identifications must be made in each of the offeror's
following mediums:
(i) The offer itself.
(ii) Printed commercial catalogs, brochures, and pricelists.
(iii) Online product website.
(iv) Electronic data submission for GSA Advantage! submitted via
GSA's Schedules Input Program (SIP) software or the Electronic Data
Inter-change (EDI). Offerors can use the SIP or EDI methods to
indicate environmental and other attributes for each product that
are translated into respective icons in GSA Advantage!.
(d) An offeror, in identifying an item with an environmental
attribute, must possess evidence or rely on a reasonable basis to
substantiate the claim (see 16 CFR part 260, Guides for the Use of
Environmental Marketing Claims). The Government will accept an
offeror's claim of an item's environmental attribute on the basis
of--
(1) Participation in a Federal agency sponsored program (e.g.,
the EPA and DOE ENERGY STAR[supreg] product labeling program);
(2) Verification by an independent organization that specializes
in certifying such claims; or
(3) Possession of competent and reliable evidence. For any test,
analysis, research, study, or other evidence to be ``competent and
reliable,'' it must have been conducted and evaluated in an
objective manner by persons qualified to do so, using procedures
generally accepted in the profession to yield accurate and reliable
results.
(End of clause)
552.238-79 Cancellation.
As prescribed in 538.273(d)(3), insert the following clause:
Cancellation (May 2019)
Either party may cancel this contract in whole or in part by
providing written notice. The cancellation will take effect 30
calendar days after the other party receives the notice of
cancellation. If the Contractor elects to cancel this contract, the
Government will not reimburse the minimum guarantee.
(End of clause)
0
17. Add section 552.238-80 to read as follows:
552.238-80 Industrial Funding Fee and Sales Reporting.
As prescribed in 538.273(d)(4) insert the following clause:
Industrial Funding Fee and Sales Reporting (May 2019)
(a) Reporting of Federal Supply Schedule Sales. The Contractor
shall report all contract sales under this contract as follows:
(1) The Contractor shall accurately report the dollar value, in
U.S. dollars and rounded to the nearest whole dollar, of all sales
under this contract by calendar quarter (January 1-March 31, April
1-June 30, July 1-September 30, and October 1-December 31). The
dollar value of a sale is the price paid by the Schedule user for
products and services on a Schedule task or delivery order. The
reported contract sales value shall include the Industrial Funding
Fee (IFF). The Contractor shall maintain a consistent
[[Page 17044]]
accounting method of sales reporting, based on the Contractor's
established commercial accounting practice. The acceptable points at
which sales may be reported include--
(i) Receipt of order;
(ii) Shipment or delivery, as applicable;
(iii) Issuance of an invoice; or
(iv) Payment.
(2) Contract sales shall be reported to Federal Acquisition
Services (FAS) within 30 calendar days following the completion of
each reporting quarter. The Contractor shall continue to furnish
quarterly reports, including ``zero'' sales, through physical
completion of the last outstanding task order or delivery order of
the contract.
(3) Reportable sales under the contract are those resulting from
sales of contract items to authorized users unless the purchase was
conducted pursuant to a separate contracting authority such as a
Governmentwide Acquisition Contract (GWAC); a separately awarded FAR
Part 12, FAR Part 13, FAR Part 14, or FAR Part 15 procurement; or a
non-FAR contract. Sales made to state and local governments under
Cooperative Purchasing authority shall be counted as reportable
sales for IFF purposes.
(4) The Contractor shall electronically report the quarterly
dollar value of sales, including ``zero'' sales, by utilizing the
automated reporting system at an internet website designated by the
General Services Administration (GSA)'s Federal Acquisition Service
(FAS). Prior to using this automated system, the Contractor shall
complete contract registration with the FAS Vendor Support Center
(VSC). The website address, as well as registration instructions and
reporting procedures, will be provided at the time of award. The
Contractor shall report sales separately for each National Stock
Number (NSN), Special Item Number (SIN), or sub-item.
(5) The Contractor shall convert the total value of sales made
in foreign currency to U.S. dollars using the ``Treasury Reporting
Rates of Exchange'' issued by the U.S. Department of Treasury,
Financial Management Service. The Contractor shall use the issue of
the Treasury report in effect on the last day of the calendar
quarter. The report is available from Financial Management Service,
International Funds Branch, Telephone: (202) 874-7994, internet:
https://www.fiscal.treasury.gov/fsreports/rpt/treasRptRateExch/treasRptRateExch_home.htm.
(b) The Contractor shall remit the IFF at the rate set by GSA's
FAS.
(1) The Contractor shall remit the IFF to FAS in U.S. dollars
within 30 calendar days after the end of the reporting quarter;
final payment shall be remitted within 30 days after physical
completion of the last outstanding task order or delivery order of
the contract.
(2) The IFF represents a percentage of the total quarterly sales
reported. This percentage is set at the discretion of GSA's FAS.
GSA's FAS has the unilateral right to change the percentage at any
time, but not more than once per year. FAS will provide reasonable
notice prior to the effective date of the change. The IFF reimburses
FAS for the costs of operating the Federal Supply Schedules Program.
FAS recoups its operating costs from ordering activities as set
forth in 40 U.S.C. 321: Acquisition Services Fund. Net operating
revenues generated by the IFF are also applied to fund initiatives
benefitting other authorized FAS programs, in accordance with 40
U.S.C. 321. Offerors must include the IFF in their prices. The fee
is included in the award price(s) and reflected in the total amount
charged to ordering activities. FAS will post notice of the current
IFF at https://72a.gsa.gov/ or successor website as appropriate.
(c) Within 60 days of award, an FAS representative will provide
the Contractor with specific written procedural instructions on
remitting the IFF. FAS reserves the unilateral right to change such
instructions from time to time, following notification to the
Contractor.
(d) Failure to remit the full amount of the IFF within 30
calendar days after the end of the applicable reporting period
constitutes a contract debt to the United States Government under
the terms of FAR Subpart 32.6. The Government may exercise all
rights under the Debt Collection Improvement Act of 1996, including
withholding or setting off payments and interest on the debt (see
FAR clause 52.232-17, Interest). Should the Contractor fail to
submit the required sales reports, falsify them, or fail to timely
pay the IFF, this is sufficient cause for the Government to
terminate the contract for cause.
(End of clause)
Alternate I (May 2019). As prescribed in 538.273(d)(4), substitute
the following paragraphs (a), (b), (c), and (d) for paragraphs (a),
(b), (c), and (d) of the basic clause:
(a) Definition. ``Transactional data'' encompasses the
historical details of the products or services delivered by the
Contractor during the performance of task or delivery orders issued
against this contract.
(b) Reporting of Transactional Data. The Contractor must report
all transactional data under this contract as follows:
(1) The Contractor must electronically report transactional data
by utilizing the automated reporting system at an internet website
designated by the General Services Administration (GSA) or by
uploading the data according to GSA instructions. GSA will post
registration instructions and reporting procedures on the Vendor
Support Center website, https://vsc.gsa.gov. The reporting system
website address, as well as registration instructions and reporting
procedures, will be provided at the time of award or inclusion of
this clause in the contract.
(2) The Contractor must provide, at no additional cost to the
Government, the following transactional data elements, as
applicable:
(i) Contract or Blanket Purchase Agreement (BPA) Number.
(ii) Delivery/Task Order Number/Procurement Instrument
Identifier (PIID).
(iii) Non Federal Entity.
(iv) Description of Deliverable.
(v) Manufacturer Name.
(vi) Manufacturer Part Number.
(vii) Unit Measure (each, hour, case, lot).
(viii) Quantity of Item Sold.
(ix) Universal Product Code.
(x) Price Paid per Unit.
(xi) Total Price.
Note to paragraph (b)(2): The Contracting Officer may add data
elements to the standard elements listed in paragraph (b)(2) of this
section with the approvals listed in GSAM 507.105(c)(3).
(3) The contractor must report transactional data within 30
calendar days from the last calendar day of the month. If there was
no contract activity during the month, the Contractor must submit a
confirmation of no reportable transactional data within 30 calendar
days of the last calendar day of the month.
(4) The Contractor must report the price paid per unit, total
price, or any other data elements with an associated monetary value
listed in (b)(2) of this section, in U.S. dollars.
(5) The reported price paid per unit and total price must
include the Industrial Funding Fee (IFF).
(6) The Contractor must maintain a consistent accounting method
of transactional data reporting, based on the Contractor's
established commercial accounting practice.
(7) Reporting Points.
(i) The acceptable points at which transactional data may be
reported include--
(A) Issuance of an invoice; or
(B) Receipt of payment.
(ii) The Contractor must determine whether to report
transactional data on the basis of invoices issued or payments
received.
(8) The Contractor must continue to furnish reports, including
confirmation of no transactional data, through physical completion
of the last outstanding task or delivery order of the contract.
(9) Unless otherwise expressly stated by the ordering activity,
orders that contain classified information or other or information
that would compromise national security are exempt from this
reporting requirement.
(10) This clause does not exempt the Contractor from fulfilling
existing reporting requirements contained elsewhere in the contract.
(11) GSA reserves the unilateral right to change reporting
instructions following 60 calendar days' advance notification to the
Contractor.
(c) Industrial Funding Fee (IFF).
(1) This contract includes an IFF charged on orders placed
against this contract. The IFF is paid by the authorized ordering
activity but remitted to GSA by the Contractor. The IFF reimburses
GSA for the costs of operating the Federal Supply Schedule program,
as set forth in 40 U.S.C. 321: Acquisition Services Fund. Net
operating revenues generated by the IFF are also applied to fund
initiatives benefitting other authorized GSA programs, in accordance
with 40 U.S.C. 321.
(2) GSA has the unilateral right to change the fee amount at any
time, but not more than once per year; GSA will provide reasonable
notice prior to the effective date of any change. GSA will post
notice of the current
[[Page 17045]]
IFF on the Vendor Support Center website at https://vsc.gsa.gov.
(3) Offerors must include the IFF in their prices. The fee is
included in the awarded price(s) and reflected in the total amount
charged to ordering activities. The fee will not be included in the
price of non-contract items purchased pursuant to a separate
contracting authority, such as a Governmentwide Acquisition Contract
(GWAC); a separately awarded Federal Acquisition Regulation (FAR)
Part 12, FAR Part 13, FAR Part 14, or FAR Part 15 procurement; or a
non-FAR contract.
(4) The Contractor must remit the IFF to GSA in U.S. dollars
within 30 calendar days after the last calendar day of the reporting
quarter; final payment must be remitted within 30 calendar days
after physical completion of the last outstanding task order or
delivery order issued against the contract.
(5) GSA reserves the unilateral right to change remittance
instructions following 60 calendar days' advance notification to the
Contractor.
(d) The Contractor's failure to remit the full amount of the IFF
within 30 calendar days after the end of the applicable reporting
period constitutes a contract debt to the United States Government
under the terms of FAR Subpart 32.6. The Government may exercise all
rights under the Debt Collection Improvement Act of 1996, including
withholding or offsetting payments and interest on the debt (see FAR
clause 52.232-17, Interest). If the Contractor fails to submit the
required transactional data reports, falsifies them, or fails to
timely pay the IFF, these reasons constitute sufficient cause for
the Government to terminate the contract for cause.
0
18. Revise sections 552.238-81 and 552.238-82 to read as follows:
552.238-81 Price Reductions.
As prescribed in 538.273(d)(5) insert the following clause:
Price Reductions (May 2019)
(a) Before award of a contract, the Contracting Officer and the
Offeror will agree upon (1) the customer (or category of customers)
which will be the basis of award, and (2) the Government's price or
discount relationship to the identified customer (or category of
customers). This relationship shall be maintained throughout the
contract period. Any change in the Contractor's commercial pricing
or discount arrangement applicable to the identified customer (or
category of customers) which disturbs this relationship shall
constitute a price reduction.
(b) During the contract period, the Contractor shall report to
the Contracting Officer all price reductions to the customer (or
category of customers) that was the basis of award. The Contractor's
report shall include an explanation of the conditions under which
the reductions were made.
(c)(1) A price reduction shall apply to purchases under this
contract if, after the date negotiations conclude, the Contractor--
(i) Revises the commercial catalog, pricelist, schedule or other
document upon which contract award was predicated to reduce prices;
(ii) Grants more favorable discounts or terms and conditions
than those contained in the commercial catalog, pricelist, schedule
or other documents upon which contract award was predicated; or
(iii) Grants special discounts to the customer (or category of
customers) that formed the basis of award, and the change disturbs
the price/discount relationship of the Government to the customer
(or category of customers) that was the basis of award.
(2) The Contractor shall offer the price reduction to the
eligible ordering activity with the same effective date, and for the
same time period, as extended to the commercial customer (or
category of customers).
(d) There shall be no price reduction for sales--
(1) To commercial customers under firm, fixed-price definite
quantity contracts with specified delivery in excess of the maximum
order threshold specified in this contract;
(2) To Federal agencies;
(3) Made to Eligible Ordering Activities identified in GSAR
Clause 552.238-113 when the order is placed under this contract (and
the Eligible Ordering Activities identified in GSAR Clause 552.238-
113 is the agreed upon customer or category of customer that is the
basis of award); or
(4) Caused by an error in quotation or billing, provided
adequate documentation is furnished by the Contractor to the
Contracting Officer.
(e) The Contractor may offer the Contracting Officer a voluntary
Governmentwide price reduction at any time during the contract
period.
(f) The Contractor shall notify the Contracting Officer of any
price reduction subject to this clause as soon as possible, but not
later than 15 calendar days after its effective date.
(g) The contract will be modified to reflect any price reduction
which becomes applicable in accordance with this clause.
(End of clause)
Alternate I (May 2019). As prescribed in 538.273(d)(5), substitute
the following paragraph (a) and (b) for paragraphs (a), (b), (c), (d),
(e), (f) and (g) of the basic clause:
(a) The Government may request from the Contractor, and the
Contractor may provide to the Government, a temporary or permanent
price reduction at any time during the contract period.
(b) The Contractor may offer the Contracting Officer a voluntary
price reduction at any time during the contract period.
552.238-82 Modifications (Federal Supply Schedules).
As prescribed in 538.273(d)(6), insert the following clause:
Modifications (Federal Supply Schedules) (May 2019)
(a) General. The Contractor may request a contract modification
by submitting a request to the Contracting Officer for approval,
except as noted in paragraph (d) of this clause. At a minimum, every
request shall describe the proposed change(s) and provide the
rationale for the requested change(s).
(b) Types of modifications--(1) Additional items/additional
SINs. When requesting additions, the following information must be
submitted:
(i) Information requested in paragraphs (1) and (2) of the
Commercial Sales Practice Format to add SINs.
(ii) Discount information for the new items(s) or new SIN(s).
Specifically, submit the information requested in paragraphs 3
through 5 of the Commercial Sales Practice Format. If this
information is the same as the initial award, a statement to that
effect may be submitted instead.
(iii) Information about the new item(s) or the item(s) under the
new SIN(s) must be submitted in accordance with the request for
proposal.
(iv) Delivery time(s) for the new item(s) or the item(s) under
the new SIN(s) must be submitted in accordance with the request for
proposal.
(v) Production point(s) for the new item(s) or the item(s) under
the new SIN(s) must be submitted if required by FAR 52.215-6, Place
of Performance.
(vi) Hazardous Material information (if applicable) must be
submitted as required by FAR 52.223-3 (Alternate I), Hazardous
Material Identification and Material Safety Data.
(vii) Any information requested by FAR 52.212-3(f), Offeror
Representations and Certifications--Commercial Items, that may be
necessary to assure compliance with FAR 52.225-1, Buy American Act--
Balance of Payments Programs--Supplies.
(2) Deletions. The Contractors shall provide an explanation for
the deletion. The Government reserves the right to reject any
subsequent offer of the same item or a substantially equal item at a
higher price during the same contract period, if the contracting
officer finds the higher price to be unreasonable when compared with
the deleted item.
(3) Price reduction. The Contractor shall indicate whether the
price reduction falls under the item (i), (ii), or (iii) of
paragraph (c)(1) of the Price Reductions clause at 552.238-81. If
the Price reduction falls under item (i), the Contractor shall
submit a copy of the dated commercial price list. If the price
reduction falls under item (ii) or (iii), the Contractor shall
submit a copy of the applicable price list(s), bulletins or letters
or customer agreements which outline the effective date, duration,
terms and conditions of the price reduction.
(c) Effective dates. The effective date of any modification is
the date specified in the modification, except as otherwise provided
in the Price Reductions clause at 552.238-81.
(d) Electronic file updates. The Contractor shall update
electronic file submissions to reflect all modifications. For
additional items or SINs, the Contractor shall obtain the
Contracting Officer's approval before transmitting changes. Contract
modifications will not be made effective until the Government
receives the electronic file updates. The Contractor may transmit
price
[[Page 17046]]
reductions, item deletions, and corrections without prior approval.
However, the Contractor shall notify the Contracting Officer as set
forth in the Price Reductions clause at 552.238-81.
(e) Amendments to paper Federal Supply Schedule Price Lists. (1)
The Contractor must provide supplements to its paper price lists,
reflecting the most current changes. The Contractor may either:
(i) Distribute a supplemental paper Federal Supply Schedule
Price List within 15 workdays after the effective date of each
modification.
(ii) Distribute quarterly cumulative supplements. The period
covered by a cumulative supplement is at the discretion of the
Contractor, but may not exceed three calendar months from the
effective date of the earliest modification. For example, if the
first modification occurs in February, the quarterly supplement must
cover February-April, and every three month period after. The
Contractor must distribute each quarterly cumulative supplement
within 15 workdays from the last day of the calendar quarter.
(2) At a minimum, the Contractor shall distribute each
supplement to those ordering activities that previously received the
basic document. In addition, the Contractor shall submit two copies
of each supplement to the Contracting Officer and one copy to the
FSS Schedule Information Center.
(End of clause)
Alternate I (May 2019). As prescribed in 538.273(d)(6)(i), add the
following paragraph (f) to the basic clause:
(f) Electronic submission of modification requests is mandatory
via eMod (https://eOffer.gsa.gov), unless otherwise stated in the
electronic submission standards and requirements at the Vendor
Support Center website (https://vsc.gsa.gov). If the electronic
submissions standards and requirements information is updated at the
Vendor Support Center website, Contractors will be notified prior to
the effective date of the change.
Alternate II (May 2019). As prescribed in 538.273(d)(6)(ii),
substitute the following paragraph (b) for paragraph (b) of the basic
clause:
(b) Types of Modifications.
(1) Additional items/additional SINs. When requesting additions,
the Contractor must submit the following information:
(i) Information about the new item(s) or the item(s) under the
new SIN(s) must be submitted in accordance with the instructions in
the solicitation.
(ii) Delivery time(s) for the new item(s) or the item(s) under
the new SIN(s) must be submitted in accordance with the request for
proposal.
(iii) Production point(s) for the new item(s) or the item(s)
under the new SIN(s) must be submitted if required by FAR 52.215-6,
Place of Performance.
(iv) Hazardous Material information (if applicable) must be
submitted as required by FAR 52.223-3 (Alternate I), Hazardous
Material Identification and Material Safety Data.
(v) Any information requested by FAR 52.212-3(f), Offeror
Representations and Certifications--Commercial Items, that may be
necessary to assure compliance with FAR 52.225-1, Buy American Act--
Balance of Payments Programs--Supplies.
(2) Deletions. The Contractor must provide an explanation for
the deletion. The Government reserves the right to reject any
subsequent offer of the same item or a substantially equal item at a
higher price during the same contract period, if the Contracting
Officer determines that the higher price is unreasonable compared to
the price of the deleted item.
0
19. Add sections 552.238-83 through 552.238-115 to read as follows:
Sec.
* * * * *
552.238-83 Examination of Records by GSA (Federal Supply Schedules).
552.238-84 Discounts for Prompt Payment.
552.238-85 Contractor's Billing Responsibilities.
552.238-86 Delivery Schedule.
552.238-87 Delivery Prices.
552.238-88 GSA Advantage![supreg].
552.238-89 Deliveries to the U.S. Postal Service.
552.238-90 Characteristics of Electric Current.
552.238-91 Marking and Documentation Requirements for Shipping.
552.238-92 Vendor Managed Inventory (VMI) Program.
552.238-93 Order Acknowledgement.
552.238-94 Accelerated Delivery Requirements.
552.238-95 Separate Charge for Performance Oriented Packaging (POP).
552.238-96 Separate Charge for Delivery within Consignee's Premises.
552.238-97 Parts and Service.
552.238-98 Clauses for Overseas Coverage.
552.238-99 Delivery Prices Overseas.
552.238-100 Transshipments.
552.238-101 Foreign Taxes and Duties.
552.238-102 English Language and U.S. Dollar Requirements.
552.238-103 Electronic Commerce.
552.238-104 Dissemination of Information by Contractor.
552.238-105 Deliveries Beyond the Contractual Period--Placing of
Orders.
552.238-106 Interpretation of Contract Requirements.
552.238-107 Export Traffic Release (Supplies).
552.238-108 Spare Parts Kit.
552.238-109 Authentication Supplies and Services.
552.238-110 Commercial Satellite Communication (COMSATCOM) Services.
552.238-111 Environmental Protection Agency Registration
Requirement.
552.238-112 Definition (Federal Supply Schedules)--Non-Federal
Entity.
552.238-113 Scope of Contract (Eligible Ordering Activities).
552.238-114 Use of Federal Supply Schedule Contracts by Non-Federal
Entities.
552.238-115 Special Ordering Procedures for the Acquisition of
Order-Level Materials.
* * * * *
552.238-83 Examination of Records by GSA (Federal Supply Schedules).
As prescribed in 538.273(d)(7) insert the following clause:
Examination of Records by GSA (Federal Supply Schedules) (May 2019)
The Contractor agrees that the Administrator of General Services
or any duly authorized representative shall have access to and the
right to examine any books, documents, papers and records of the
contractor involving transactions related to this contract for
overbillings, billing errors, compliance with contract clauses
552.238-75, Price Reductions and 552.238-74, Industrial Funding Fee
and Sales Reporting. This authority shall expire 3 years after final
payment. The basic contract and each option shall be treated as
separate contracts for purposes of applying this clause.
(End of clause)
552.238-84 Discounts for Prompt Payment.
As prescribed in 538.273(d)(8), insert the following clause:
Discounts for Prompt Payment (May 2019)
(a) Discounts for early payment (hereinafter referred to as
``discounts'' or ``the discount'') will be considered in evaluating
the relationship of the Offeror's concessions to the Government vis-
a-vis the Offeror's concessions to its commercial and Federal non-
schedule customers, but only to the extent indicated in this clause.
(b) Discounts will not be considered to determine the low
Offeror in the situation described in the ``Offers on Identical
Products'' provision of this solicitation.
(c) Uneconomical discounts will not be considered as meeting the
criteria for award established by the Government. In this
connection, a discount will be considered uneconomical if the
annualized rate of return for earning the discount is lower than the
``value of funds'' rate established by the Department of the
Treasury and published quarterly in the Federal Register. The
``value of funds'' rate applied will be the rate in effect on the
date specified for the receipt of offers.
(d) Discounts for early payment may be offered either in the
original offer or on individual invoices submitted under the
resulting contract. Discounts offered will be taken by the ordering
activity if payment is made within the discount period specified.
(e) Discounts that are included in offers become a part of the
resulting contracts and are binding on the Contractor for all orders
placed under the contract. Discounts offered only on individual
invoices will be binding on the Contractor only for the particular
invoice on which the discount is offered.
(f) In connection with any discount offered for prompt payment,
time shall be computed from the date of the invoice. For the purpose
[[Page 17047]]
of computing the discount earned, payment shall be considered to
have been made on the date which appears on the payment check or the
date on which an electronic funds transfer was made.
(End of clause)
552.238-85 Contractor's Billing Responsibilities.
As prescribed in 538.273(d)(9) insert the following clause:
Contractor's Billing Responsibilities (May 2019)
(a) The Contractor is required to perform all billings made
pursuant to this contract. However, if the Contractor has dealers
that participate on the contract and the billing/payment process by
the Contractor for sales made by the dealer is a significant
administrative burden, the following alternative procedures may be
used. Where dealers are allowed by the Contractor to bill ordering
activities and accept payment in the Contractor's name, the
Contractor agrees to obtain from all dealers participating in the
performance of the contract a written agreement, which will require
dealers to--
(1) Comply with the same terms and conditions as the Contractor
for sales made under the contract;
(2) Maintain a system of reporting sales under the contract to
the manufacturer, which includes--
(i) The date of sale;
(ii) The ordering activity to which the sale was made;
(iii) The service or supply/model sold;
(iv) The quantity of each service or supply/model sold;
(v) The price at which it was sold, including discounts; and
(vi) All other significant sales data.
(3) Be subject to audit by the Government, with respect to sales
made under the contract; and
(4) Place orders and accept payments in the name of the
Contractor in care of the dealer.
(b) An agreement between a Contractor and its dealers pursuant
to this procedure will not establish privity of contract between
dealers and the Government.
(End of clause)]
552.238-86 Delivery Schedule.
As prescribed in 538.273(d)(10) insert the following clause:
Delivery Schedule (May 2019)
(a) Time of delivery. The Contractor shall deliver to
destination within the number of calendar days after receipt of
order (ARO) in the case of F.O.B. Destination prices; or to place of
shipment in transit in the case of F.O.B. Origin prices, as set
forth below. Offerors shall insert in the ``Time of Delivery (days
ARO)'' column in the schedule of Items a definite number of calendar
days within which delivery will be made. In no case shall the
offered delivery time exceed the Contractor's normal business
practice. The Government requires the Contractor's normal delivery
time, as long as it is less than the ``stated'' delivery time(s)
shown below. If the Offeror does not insert a delivery time in the
schedule of items, the Offeror will be deemed to offer delivery in
accordance with the Government's stated delivery time, as stated
below [The contracting officer shall insert the solicited items or
Special Item Numbers (SIN) as well as a reasonable delivery time
that corresponds with each item or SIN, if known]:
Items or group of
items (special item Government's stated Contractor's
no. or delivery time (days delivery time
nomenclature) ARO)
*________* *________* *________*
*________* *________* *________*
*________* *________* *________*
(b) Expedited delivery times. For those items that can be
delivered quicker than the delivery times in paragraph (a) of this
clause, the Offeror is requested to insert below, a time (hours/days
ARO) that delivery can be made when expedited delivery is requested.
Items or group of items (special Expedited delivery time (hours/
item no. or nomenclature) days ARO)
*________* *________*
*________*
*________* *________*
*________*
(c) Overnight and 2-Day delivery times. Ordering activities may
require overnight or 2-day delivery. The Offeror is requested to
annotate its price list or by separate attachment identify the items
that can be delivered overnight or within 2 days. Contractors
offering such delivery services will be required to state in the
cover sheet to its FSS price list details concerning this service.
(End of clause)]
552.238-87 Delivery Prices.
As prescribed in 538.273(d)(11), insert the following clause:
Delivery Prices (May 2019)
(a) Prices offered must cover delivery as provided below to
destinations located within the 48 contiguous States and the
District of Columbia.
(1) Delivery to the door of the specified Government activity by
freight or express common carriers on articles for which store-door
delivery is provided, free or subject to a charge, pursuant to
regularly published tariffs duly filed with the Federal and/or State
regulatory bodies governing such carrier; or, at the option of the
Contractor, by parcel post on mailable articles, or by the
Contractor's vehicle. Where store-door delivery is subject to a
charge, the Contractor shall place the notation ``Delivery Service
Requested'' on bills of lading covering such shipments, and pay such
charge and add the actual cost thereof as a separate item to his
invoice.
(2) Delivery to siding at destinations when specified by the
ordering office, if delivery is not covered under paragraph (a)(1)
of this section.
(3) Delivery to the freight station nearest destination when
delivery is not covered under paragraph (a)(1) or (2) of this
section.
(b) The Offeror shall indicate in the offer whether or not
prices submitted cover delivery f.o.b. destination in Alaska,
Hawaii, and the Commonwealth of Puerto Rico.
(c) When deliveries are made to destinations outside the
contiguous 48 States; i.e., Alaska, Hawaii, and the Commonwealth of
Puerto Rico, and are not covered by paragraph (b), above, the
following conditions will apply:
(1) Delivery will be f.o.b. inland carrier, point of exportation
(FAR 52.247-38), with the transportation charges to be paid by the
Government from point of exportation to destination in Alaska,
Hawaii, or the Commonwealth of Puerto Rico, as designated by the
ordering office. The Contractor shall add the actual cost of
transportation to destination from the point of exportation in the
48 contiguous States nearest to the designated destination. Such
costs will, in all cases, be based upon the lowest regularly
established rates on file with the Interstate Commerce Commission,
the U.S. Maritime Commission (if shipped by water), or any State
regulatory body, or those published by the U.S. Postal Service; and
must be supported by paid freight or express receipt or by a
statement of parcel post charges including weight of shipment.
(2) The right is reserved to ordering agencies to furnish
Government bills of lading.
(End of clause)
552.238-88 GSA Advantage![supreg].
As prescribed in 538.273(d)(12), insert the following clause:
GSA Advantage![supreg] (May 2019)
(a) The Contractor shall participate in the GSA
Advantage![supreg] online shopping service. Information and
instructions regarding Contractor participation are contained in
clause 552.238-111, Electronic Commerce.
[[Page 17048]]
(b) The Contractor shall refer to contract clauses 552.238-71,
Submission and Distribution of Authorized FSS Price Lists (which
provides for submission of price lists on a common-use electronic
medium), and 552.238-81, Modifications (which addresses electronic
file updates).
(End of clause)
552.238-89 Deliveries to the U.S. Postal Service.
As prescribed in 538.273(d)(13), insert the following clause:
Deliveries to the U.S. Postal Service (May 2019)
(a) Applicability. This clause applies to orders placed for the
U.S. Postal Service (USPS) and accepted by the Contractor for the
delivery of supplies to a USPS facility (consignee).
(b) Mode/method of transportation. Unless the Contracting
Officer grants a waiver of this requirement, any shipment that meets
the USPS requirements for mailability (i.e., 70 pounds or less,
combined length and girth not more than 108 inches, etc.) delivery
shall be accomplished via the use of the USPS. Other commercial
services shall not be used, but this does not preclude the
Contractor from making delivery by the use of the Contractor's own
vehicles.
(c) Time of delivery. Notwithstanding the required time for
delivery to destination as may be specified elsewhere in this
contract, if shipments under this clause are mailed not later than
five (5) calendar days before the required delivery date, delivery
shall be deemed to have been made timely.
(End of clause)
552.238-90 Characteristics of Electric Current.
As prescribed in 538.273(d)(14), insert the following clause:
Characteristics of Electric Current (May 2019)
Contractors supplying equipment which uses electrical current
are required to supply equipment suitable for the electrical system
at the location at which the equipment is to be used as specified on
the order.
(End of clause)
552.238-91 Marking and Documentation Requirements for Shipping.
As prescribed in 538.273(d)(15), insert the following clause:
Marking and Documentation Requirements for Shipping (May 2019)
(a) Responsibility. It shall be the responsibility of the
ordering activity to determine the full marking and documentation
requirements necessary under the various methods of shipment
authorized by the contract.
(b) Documentation. In the event the ordering activity fails to
provide the essential information and documentation, the Contractor
shall, within three days after receipt of order, contact the
ordering activity and advise them accordingly. The Contractor shall
not proceed with any shipment requiring transshipment via U.S.
Government facilities without the prerequisites stated in paragraph
(c) of this section.
(c) Direct shipments. The Contractor shall mark all items
ordered against this contract with indelible ink, paint or fluid, as
follows:
(1) Traffic Management or Transportation Officer at FINAL
destination.
(2) Ordering Supply Account Number.
(3) Account number.
(4) Delivery Order or Purchase Order Number.
(5) National Stock Number, if applicable; or Contractor's item
number.
(6) Box __of __Boxes.
(7) Nomenclature (brief description of items).
(End of clause)
552.238-92 Vendor Managed Inventory (VMI) Program.
As prescribed in 538.273(d)(16), insert the following clause:
Vendor Managed Inventory (VMI) Program (May 2019)
(a) The term ``Vendor Managed Inventory'' describes a system in
which the Contractor monitors and maintains specified inventory
levels for selected items at designated stocking points. VMI enables
the Contractor to plan production and shipping more efficiently.
Stocking points benefit from reduced inventory but steady stock
levels.
(b) Contractors that commercially provide a VMI-type system may
enter into similar partnerships with ordering agencies under a
Blanket Purchase Agreement.
(End of clause)
552.238-93 Order Acknowledgement.
As prescribed in 538.273(d)(17), insert the following clause:
Order Acknowledgement (May 2019)
Contractors shall acknowledge only those orders which state
``Order Acknowledgement Required.'' These orders shall be
acknowledged within 10 calendar days after receipt. Such
acknowledgement shall be sent to the ordering activity placing the
order and contain information pertinent to the order, including the
anticipated delivery date.
(End of clause)
552.238-94 Accelerated Delivery Requirements.
As prescribed in 538.273(d)(18), insert the following clause:
Accelerated Delivery Requirements (May 2019)
When the Federal Supply Schedule contract delivery period does
not meet the bona fide urgent delivery requirements of an ordering
activity, the ordering activity is encouraged, if time permits, to
contact the Contractor for the purpose of obtaining accelerated
delivery. The Contractor shall reply to the inquiry within three (3)
business days after receipt. (Telephonic replies shall be confirmed
by the Contractor in writing.) If the Contractor offers an
accelerated delivery time acceptable to the ordering activity, any
order(s) placed pursuant to the agreed upon accelerated delivery
time frame shall be delivered within this shorter delivery time and
in accordance with all other terms and conditions of the contract.
(End of clause)
552.238-95 Separate Charge for Performance Oriented Packaging (POP).
As prescribed in 538.273(d)(19), insert the following clause:
Separate Charge for Performance Oriented Packaging (POP) (May 2019)
(a) Offerors are requested to list the hazardous material item
to which the separate charge applies in the spaces provided in this
paragraph or on a separate attachment. The final price shall be
quoted separately at the order level and, if considered reasonable,
will be accepted as part of the order.
------------------------------------------------------------------------
------------------------------------------------------------------------
ITEMS
------------------------------------------------------------------------
SINS or Descriptive Name of Articles (as Charge for Performance
appropriate). Oriented
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
(b) Ordering activities will not be obligated to utilize the
Contractor's services for Performance Oriented Packaging, and they
may obtain such services elsewhere if desired. However, the
Contractor shall provide items in Performance Oriented Packaging
when such packing is specified on the delivery order. The
Contractor's contract price and the charge for Performance Oriented
Packaging will be shown as separate entries on the delivery order.
(End of clause)
552.238-96 Separate Charge for Delivery within Consignee's Premises.
As prescribed in 538.273(d)(20), insert the following clause:
Separate Charge for Delivery within Consignee's Premises (May 2019)
(a) Offerors are requested to insert, in the spaces provided
below or by attachment hereto, a separate charge for ``Delivery
Within Consignee's Premises'' applicable to each shipping container
to be shipped. (Articles which are comparable in size and weight,
and for which the same charge is applicable, should be grouped under
an appropriate item description.) These additional charges will be
accepted as part of the award, if considered reasonable, and shall
be included in the Contractor's published catalog and/or price list.
(b) Ordering activities are not obligated to issue orders on the
basis of ``Delivery Within Consignee's Premises,'' and Contractors
may refuse delivery on that basis provided such refusal is
communicated in writing to the ordering activity issuing such orders
within 5 days of the receipt of such order by the
[[Page 17049]]
Contractor and provided further, that delivery is made in accordance
with the other delivery requirements of the contract. Failure of the
Contractor to submit this notification within the time specified
shall constitute acceptance to furnish ``Delivery Within Consignee's
Premises'' at the additional charge awarded. When an ordering
activity issues an order on the basis of ``Delivery Within
Consignee's Premises'' at the accepted additional charge awarded and
the Contractor accepts such orders on that basis, the Contractor
will be obligated to provide delivery ``F.o.b. Destination, Within
Consignee's Premises'' in accordance with FAR 52.247-35, which is
then incorporated by reference, with the exception that an
additional charge as provided herein is allowed for such services.
Unless otherwise stipulated by the Offeror, the additional charges
awarded hereunder may be applied to any delivery within the 48
contiguous States and the District of Columbia.
(c) When exercising their option to issue orders on the basis of
delivery service as provided herein, ordering activities will
specify ``Delivery Within Consignee's Premises'' on the order, and
will indicate the exact location to which delivery is to be made.
The Contractor's delivery price and the additional charge(s) for
``Delivery Within Consignee's Premises'' will be shown as separate
entries on the order.
------------------------------------------------------------------------
------------------------------------------------------------------------
ITEMS
------------------------------------------------------------------------
(NSNs or Special Item Numbers or Additional Charge (Per
Descriptive Name of Articles). shipping container) FOR
``DELIVERY WITHIN
CONSIGNEE'S PREMISES''
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
------------------------------------------------------------------------
(End of clause)
552.238-97 Parts and Service.
As prescribed in 538.273(d)(21), insert the following clause:
Parts and Service (May 2019)
(a) For equipment under items listed in the schedule of items or
services on which offers are submitted, the Contractor represents by
submission of this offer that parts and services (including the
performing of warranty or guarantee service) are now available from
dealers or distributors serving the areas of ultimate overseas
destination or that such facilities will be established and will be
maintained throughout the contract period. If a new servicing
facility is to be established, the facility shall be established no
later than the beginning of the contract period.
(b) Each Contractor shall be fully responsible for the services
to be performed by the named servicing facilities, or by such
facilities to be established, and fully guarantees performance of
such services if the original service proves unsatisfactory.
(c) Contractors are requested to provide the Ordering Activity,
the names and addresses of all supply and service points maintained
in the geographic area in which the Contractor will perform. Please
indicate opposite each point whether or not a complete stock of
repair parts for items offered is carried at that point, and whether
or not mechanical service is available.
(End of clause)
552.238-98 Clauses for Overseas Coverage.
As prescribed in 538.273(d)(22), insert the following clause:
Clauses for Overseas Coverage (May 2019)
The following clauses apply to overseas coverage.
(a) 52.214-34 Submission of Offers in the English Language
(b) 52.214-35 Submission of Offers in U.S. Currency
(c) 552.238-90 Characteristics of Electric Current
(d) 552.238-91 Marking and Documentation Requirements Per Shipment
(e) 552.238-97 Parts and Service
(f) 552.238-99 Delivery Prices Overseas
(g) 552.238-100 Transshipments
(h) 552.238-101 Foreign Taxes and Duties
(i) 52.247-34 FOB Destination
(j) 52.247-38 FOB Inland Carrier, Point of Exportation
(k) 52.247-39 FOB Inland Point, Country of Importation
(End of clause)
552.238-99 Delivery Prices Overseas.
As prescribed in 538.273(d)(23), insert the following clause:
Delivery Prices Overseas (May 2019)
(a) Prices offered must cover delivery to destinations as
provided as follows:
(1) Direct delivery to consignee. F.O.B. Inland Point, Country
of Importation (FAR 52.247-39). (Offeror should indicate countries
where direct delivery will be provided.)
(2) Delivery to overseas assembly point for transshipment when
specified by the ordering activity, if delivery is not covered under
paragraph (1), above.
(3) Delivery to the overseas port of entry when delivery is not
covered under paragraph (a)(1) or (2) of this section.
(b) Geographic area(s)/countries/zones which are intended to be
covered must be identified in the offer.
(End of clause)
552.238-100 Transshipments.
As prescribed in 538.273(d)(24), insert the following clause:
Transshipments (May 2019)
(a) The Contractor shall complete two (2) DD Forms 1387,
Military Shipment Labels and, if applicable, four copies of DD Form
1387-2, Special Handling/Data Certification--used when shipping
chemicals, dangerous cargo, etc.
(1) Two copies of the DD Form 1387 will be attached to each
shipping container delivered to the port Transportation Officer for
subsequent transshipment by the Government as otherwise provided for
under the terms of this contract.
(2) These forms will be attached to one end and one side, not on
the top or bottom, of the container.
(3) The Contractor will complete the bottom line of these forms,
which pertains to the number of pieces, weight and cube of each
piece, using U.S. weight and cubic measures. Weights will be rounded
off to the nearest pound. (One kg = 2.2 U.S. pounds; one cubic meter
= 35.3156 cubic feet.)
(b) In addition, if the cargo consists of chemicals, or is
dangerous, one copy of the DD Form 1387-2 will be attached to the
container, and three copies will be furnished to the Transportation
Officer with the Bill of Lading.
(c) Dangerous cargo will not be intermingled with non-dangerous
cargo in the same container.
(d) Copies of the above forms and preparation instructions will
be obtained from the ordering activity issuing the Delivery Order.
Reproduced copies of the forms are acceptable.
(e) Failure to include DD Form 1387, and DD Form 1387-2, if
applicable, on each shipping container will result in rejection of
shipment by the port Transportation Officer.
(End of clause)
552.238-101 Foreign Taxes and Duties.
As prescribed in 538.273(d)(25), insert the following clause:
Foreign Taxes and Duties (May 2019)
Prices offered must be net, delivered, f.o.b. to the
destinations accepted by the Government.
(a) The Contractor warrants that such prices do not include any
tax, duty, customs fees, or other foreign Governmental costs,
assessments, or similar charges from which the U.S. Government is
exempt.
(b) Standard commercial export packaging, including
containerization, if necessary, packaging, preservation, and/or
marking are included in the pricing offered and accepted by the
Government.
(End of clause)
552.238-102 English Language and U.S. Dollar Requirements.
As prescribed in 538.273(d)(26), insert the following clause:
English Language and U.S. Dollar Requirements (May 2019)
(a) All documents produced by the Contractor to fulfill
requirements of this contract including, but not limited to, Federal
Supply Schedule catalogs and price lists, must reflect all terms and
conditions in the English language.
(b) U.S. dollar equivalency, if applicable, will be based on the
rates published in the ``Treasury Reporting Rates of Exchange'' in
effect as of the date of the agency's purchase order or in effect
during the time period specified elsewhere in this contract.
(End of clause)
[[Page 17050]]
552.238-103 Electronic Commerce.
As prescribed in 538.273(d)(27), insert the following clause:
Electronic Commerce (May 2019)
(a) General background. The Federal Acquisition Streamlining Act
(FASA) of 1994 requires the Government to evolve its acquisition
process from one driven by paper to an expedited process based on
electronic commerce/electronic data interchange (EC/EDI). EC/EDI
encompasses more than merely automating manual processes and
eliminating paper transactions. EC/EDI improves business processes
(e.g. procurement, finance, logistics) into a fully electronic
environment and fundamentally changes the way organizations operate.
(b) Trading partners and Value-Added Networks (VAN's).
(1) Within the electronic commerce architecture, electronic
documents (e.g., orders, invoices, etc.) are carried between the
Federal Government's procuring office and Contractors (now known as
``trading partners''). These transactions are carried by commercial
telecommunications companies called Value-Added Networks (VAN's).
(2) EDI can be performed using commercially available hardware,
software, and telecommunications. The selection of a VAN is a
business decision Contractors must make. There are many different
VAN's which provide a variety of electronic services and different
pricing strategies. If the VAN only provides communications
services, you may also need a software translation package.
(c) Registration instructions. To perform EDI with the
Government, Contractors shall register as a trading partner.
Contractors will provide regular business information, banking
information, and EDI capabilities to all agencies in this single
registration. A central repository of all trading partners is the
Systems for Award Management (SAM) https://www.sam.gov. Contractors
shall follow the instructions on the SAM website regarding how to
register for EDI.
(d) Implementation conventions. All EDI transactions must comply
with the Federal Implementation Conventions (ICs). The ICs are
available on a registry maintained by the National Institute of
Standards and Technology (NIST). It is accessible via the INTERNET
at https://www.nist.gov/itl. ICs are available for common business
documents such as Purchase Order, Price Sales Catalog, Invoice,
Request for Quotes, etc.
(e) Additional information. GSA has additional information
available for Contractors who are interested in using EC/EDI on its
website, www.gsa.gov.
(f) GSA Advantage![supreg]. (1) GSA Advantage![supreg] uses
electronic commerce to receive catalogs, invoices and text messages;
and to send purchase orders, application advice, and functional
acknowledgments. GSA Advantage![supreg] enables customers to:
(i) Perform database searches across all contracts by
manufacturer; manufacturer's model/part number; Contractor; and
generic supply categories.
(ii) Generate EDI delivery orders to Contractors, generate EDI
delivery orders from the Federal Supply Service to Contractors, or
download files to create their own delivery orders.
(iii) Use the credit card.
(2) GSA Advantage![supreg] may be accessed via the GSA Home
Page. The internet address is: https://www.gsa.gov.
(End of clause)
552.238-104 Dissemination of Information by Contractor.
As prescribed in 538.273(d)(28), insert the following clause:
Dissemination of Information by Contractor (May 2019)
The Government will provide the Contractor with a single copy of
the resulting Federal Supply Schedule contract award documents.
However, it is the responsibility of the Contractor to furnish all
sales outlets authorized to participate in the performance of the
contract with the terms, conditions, pricing schedule, and other
appropriate information.
(End of clause)
552.238-105 Deliveries Beyond the Contractual Period--Placing of
Orders.
As prescribed in 538.273(d)(29), insert the following clause:
Deliveries Beyond the Contractual Period--Placing of Orders (May 2019)
In accordance with Clause 552.238-78, Scope of Contract
(Eligible Ordering Activities), this contract covers all
requirements that may be ordered, as distinguished from delivered
during the contract term. This is for the purpose of providing
continuity of supply or operations by permitting ordering activities
to place orders as requirements arise in the normal course of
operations. Accordingly, any order mailed (or received, if forwarded
by other means than through the mail) to the Contractor on or before
the expiration date of the contract, and providing for delivery
within the number of days specified in the contract, shall
constitute a valid order.
(End of clause)
552.238-106 Interpretation of Contract Requirements.
As prescribed in 538.273(d)(30), insert the following clause:
Interpretation of Contract Requirements (May 2019)
No interpretation of any provision of this contract, including
applicable specifications, shall be binding on the Government unless
furnished or agreed to in writing by the Contracting Officer or his
designated representative.
(End of clause)
552.238-107 Export Traffic Release (Supplies).
As prescribed in 538.273(d)(31), insert the following clause:
Export Traffic Release (Supplies) (May 2019)
Supplies ordered by GSA for export will not be shipped by the
Contractor until shipping instructions are received from GSA. To
obtain shipping instructions, the Contractor shall forward completed
copies of GSA Form 1611, Application for Shipping Instructions and
Notice of Availability, to the GSA office designated on the purchase
order at least 15 days prior to the anticipated shipping date.
Copies of GSA Form 1611 will be furnished to the Contractor with the
purchase order. Failure to comply with this requirement could result
in nonacceptance of the material by authorities at the port of
exportation. When supplies for export are ordered by other
Government agencies the Contractor should obtain shipping
instructions from the ordering agency.
(End of clause)
552.238-108 Spare Parts Kit.
As prescribed in 538.273(d)(32), insert the following clause:
Spare Parts Kit (May 2019)
(a) The Contractor will be required to offer a spare parts kit
conforming, generally, to the following requirements for each item
awarded under this solicitation: [The Ordering Activity contracting
officer should insert the specifications for a spare parts kit
specific to the solicited items.]
(b) The Contractor shall furnish prices for spare parts kits as
follows:
(i) Price of kit unpackaged.
(ii) Price of kit in domestic pack.
(iii) Price of kit in wooden case, steel-strapped.
(c) The Contractor will be required to furnish a complete
description of spare parts kit offered, a list of parts included,
and the price of the kit delivered f.o.b. destination to any point
within the conterminous United States within 15 days after receipt
of a request from the Ordering Activity Contracting Officer. If the
kit offered is acceptable to the Ordering Activity, awards covering
requirements will be made by supplemental agreement to this
contract.
(End of clause)
552.238-109 Authentication Supplies and Services.
As prescribed in 538.273(d)(33), insert the following clause:
Authentication Supplies and Services (May 2019)
(a) General background. (1) The General Services Administration
(GSA) established the ``Identity and Access Management Services''
(IAMS) Program to clearly define the kinds of digital certificates
and PKI services that meet the requirements for service providers
and supplies that support FISMA-compliant IAM systems deployed by
Federal agencies.
(2) Homeland Security Presidential Directive 12 (HSPD-12),
``Policy for a Common Identification Standard for Federal Employees
and Contractors'' establishes the requirement for a mandatory
Government-wide standard for secure and reliable forms of
identification issued by the Federal Government to its employees and
Contractor employees assigned to Government contracts in order to
enhance security, increase Government efficiency, reduce identity
fraud, and protect personal privacy. Further, the
[[Page 17051]]
Directive requires the Department of Commerce to promulgate a
Federal standard for secure and reliable forms of identification
within six months of the date of the Directive. As a result, the
National Institute of Standards and Technology (NIST) released
Federal Information Processing Standard (FIPS) 201-2: Personal
Identity Verification of Federal Employees and Contractors August
2013. FIPS 201-2 requires that the digital certificates incorporated
into the Personal Identity Verification (PIV) identity credentials
comply with the X.509 Certificate Policy for the U.S. Federal PKI
Common Policy Framework. In addition, FIPS 201-2 requires that
Federal identity badges referred to as PIV credentials, issued to
Federal employees and Contractors comply with the Standard and
associated NIST Special Publications 800-73, 800-76, 800-78, and
800-79.
(b) Special item numbers. GSA has established the e-
Authentication Initiative (see URL: https://www.idmanagement.gov) to
provide common infrastructure for the authentication of the public
and internal Federal users for logical access to Federal e-
Government applications and electronic services. To support the
government-wide implementation of HSPD-12 and the Federal e-
Authentication Initiative, GSA has established Special Item Numbers
(SINs) pertaining to Authentication Products and Services, including
Electronic Credentials, Digital Certificates, eAuthentication,
Identify and Access Management, PKI Shared Service Providers, and
HSPD-12 Product and Service Components.
(c) Qualification information. (1) All Authentication supplies
and services must be qualified as being compliant with Government-
wide requirements before they will be included on a GSA Information
Technology (IT) Schedule contract. The Qualification Requirements
and associated evaluation procedures against the Qualification
Requirements for each SIN and the specific Qualification
Requirements for HSPD-12 implementation components are presented at
the following URL: https://www.idmanagement.gov.
(2) In addition, the National Institute of Standards and
Technology (NIST) has established the NIST Personal Identity
Verification Program (NPIVP) to evaluate integrated circuit chip
cards and supplies against conformance requirements contained in
FIPS 201. GSA has established the FIPS 201Evaluation Program to
evaluate other supplies needed for agency implementation of HSPD-12
requirements where normative requirements are specified in FIPS 201
and to perform card and reader interface testing for
interoperability. Products that are approved as FIPS-201 compliant
through these evaluation and testing programs may be offered
directly through HSPD-12 Supplies and Services Components SIN under
the category ``Approved FIPS 201-Compliant Products and services.
(d) Qualification requirements. Offerors proposing
Authentication supplies and services under the established SINs are
required to provide the following:
(1) Proposed items must be determined to be compliant with
Federal requirements for that SIN. Qualification Requirements and
procedures for the evaluation of supplies and services are posted at
the URL: https://www.idmanagement.gov. GSA will follow these
procedures in qualifying offeror's supplies and services against the
Qualification Requirements for applicable to SIN. Offerors must
submit all documentation certification letter(s) for Authentication
Supplies and Services offerings at the same time as submission of
proposal. Award will be dependent upon receipt of official
documentation from the Acquisition Program Management Office (APMO)
listed below verifying satisfactory qualification against the
Qualification Requirements of the proposed SIN(s).
(2) After award, Contractor agrees that certified supplies and
services will not be offered under any other SIN on any Federal
Supply Schedule
(3)(i) If the Contractor changes the supplies or services
previously qualified, GSA may require the Contractor to resubmit the
supplies or services for re-qualification.
(ii) If the Federal Government changes the qualification
requirements or standards, Contractor must resubmit the supplies and
services for re-qualification.
(4) Immediately prior to making an award, Contracting Officers
MUST consult the following website to ensure that the supplies and/
or services recommended for award under any Authentication Supplies
and Services SINs are in compliance with the latest APL
qualification standards: www.idmanagement.gov. A dated copy of the
applicable page should be made and included with the award
documents.
(e) Demonstrating conformance. (1) The Federal Government has
established Qualification Requirements for demonstrating conformance
with the Standards. The following websites provide additional
information regarding the evaluation and qualification processes:
(i) For Identify and Access Management Services (IAMS) and PKI
Shared Service Provider (SSP) Qualification Requirements and
evaluation procedures: https://www.idmanagement.gov;
(ii) For HSPD-12 Product and Service Components Qualification
Requirements and evaluation procedures: https://www.idmanagement.gov;
(iii) For FIPS 201 evaluation program testing and certification
procedures: https://www.idmanagement.gov/fips201/.
(f) Acquisition Program Management Office (APMO). GSA has
established the APMO to provide centralized technical oversight and
management regarding the qualification process to industry partners
and Federal agencies. Contact the following APMO for information on
the eAuthentication Qualification process. Technical, APMO, FIPS
201, and HSPD-12 Points of Contact can be found below, or in an
additional attachment to the solicitation. [The contracting officer
should insert the points of contact information below, unless
otherwise included elsewhere in the solicitation.]
*__*
(End of clause)
552.238-110 Commercial Satellite Communication (COMSATCOM) Services.
As prescribed in 538.273(d)(34) insert the following clause:
Commercial Satellite Communication (COMSATCOM) Services (May 2019)
(a) General background. Special Item Numbers (SINs) have been
established for Commercial Satellite Communications (COMSATCOM)
services, focused on transponded capacity (SIN 132-54) and fixed and
mobile subscription services (SIN 132-55), to make available common
COMSATCOM services to all Ordering Activities.
(b) Information assurance. (1) The Contractor shall demonstrate,
to the maximum extent practicable, the ability to meet:
(i) The Committee on National Security Systems Policy (CNSSP)
12, ``National Information Assurance Policy for Space Systems used
to Support National Security Missions,'' or
(ii) Department of Defense Directive (DoDD) 8581.1,
``Information Assurance (IA) Policy for Space Systems Used by the
Department of Defense.''
(2) The Contractor shall demonstrate the ability to comply with
the Federal Information Security Management Act of 2002 as
implemented by Federal Information Processing Standards Publication
200 (FIPS 200), ``Minimum Security Requirements for Federal
Information and Information Systems.'' In response to ordering
activity requirements, at a minimum, all services shall meet the
requirements assigned against:
(i) A low-impact information system (per FIPS 200) that is
described in the current revision of National Institute of Standards
and Technology (NIST) Special Publication (SP) 800-53, ``Recommended
Security Controls for Federal Information Systems and
Organizations,'' or
(ii) A Mission Assurance Category (MAC) III system that is
described in the current revision of DoD Instruction (DoDI) 8500.2,
``Information Assurance Implementation.''
(3) The Contractor's information assurance boundary is where the
Contractor's services connect to the user terminals/equipment (i.e.,
includes satellite command encryption (ground and space); systems
used in the Satellite Operations Centers (SOCs), Network Operations
Centers (NOCs) and teleport; and terrestrial infrastructure required
for service delivery).
(c) Delivery schedule. The Contractor shall deliver COMSATCOM
services in accordance with 552.238-90.
(d) Portability. The Contractor shall have the capability to
redeploy COMSATCOM services, subject to availability. Portability
shall be provided within the COMSATCOM Contractor's resources at any
time as requested by the ordering activity. When portability is
exercised, evidence of equivalent net present value (NPV) shall be
provided by the Contractor.
(e) Flexibility/optimization. The Contractor shall have the
capability to re-groom resources for spectral, operational, or price
efficiencies. Flexibility/optimization shall be provided within the
COMSATCOM
[[Page 17052]]
Contractor's resources at any time as requested by the ordering
activity. When flexibility/optimization is exercised, evidence of
equivalent net present value (NPV) shall be provided by the
Contractor. The Contractor is encouraged to submit re-grooming
approaches for ordering activity consideration that may increase
efficiencies for existing COMSATCOM services.
(f) Net ready (interoperability). COMSATCOM services shall be
consistent with commercial standards and practices. Services shall
have the capability to access and/or interoperate with Government or
other Commercial teleports/gateways and provide enterprise service
access to or among networks or enclaves. Interfaces may be
identified as interoperable on the basis of participation in a
sponsored interoperability program.
(g) Network monitoring (Net OPS). The Contractor shall have the
capability to electronically collect and deliver near real-time
monitoring, fault/incident/outage reporting, and information access
to ensure effective and efficient operations, performance, and
availability, consistent with commercial practices. Consistent with
the Contractor's standard management practices, the Net Ops
information will be provided on a frequency (example: Every 6 hours,
daily) and format (example: SNMP, XML) as defined in a requirement
to a location/entity/electronic interface defined by the ordering
activity. Specific reporting requirements will be defined by the
Ordering Activity.
(h) EMI/RFI identification, characterization, and geo-location.
The Contractor shall have the capability to collect and
electronically report in near real-time Electro Magnetic
Interference (EMI)/Radio Frequency Interference (RFI)
identification, characterization, and geo-location, including the
ability to identify and characterize sub-carrier EMI/RFI being
transmitted underneath an authorized carrier, and the ability to
geo-locate the source of any and all EMI/RFI. The Contractor shall
establish and use with the ordering activity a mutually agreed upon
media and voice communications capability capable of protecting
``Sensitive, but Unclassified'' data.
(i) Security. (1) The Contractor may be required to obtain/
possess varying levels of personnel and facility security clearances
up to U.S. Government TOP SECRET/Sensitive Compartmented Information
(TS/SCI) or equivalent clearances assigned by the National Security
Authority of a NATO Member State or Major Non-NATO Ally.
(2) For incident resolution involving classified matters, the
Contractor shall provide appropriately cleared staff who can affect
COMSATCOM services operations (example: Satellite payload
operations, network operations). The Contractor shall provide a
minimum of one operations staff member AND a minimum of one person
with the authority to commit the company if resolution requires
business impacting decisions (example: Chief Executive Officer,
Chief Operations Officer, etc.).
(3) When Communications Security or Transmission Security
equipment or keying material is placed in the equipment/terminal
shelter, the Contractor shall ensure compliance with applicable
physical security directives/guidelines and that all deployed
equipment/terminal operations and maintenance personnel shall
possess the appropriate clearances, equal to or higher than the
classification level of the data being transmitted. Where local
regulations require use of foreign personnel for terminal operations
and maintenance, then the Contractor shall ensure compliance with
applicable security directives/guidelines and document to the U.S.
Government's satisfaction that protective measures are in place and
such individuals have equivalent clearances granted by the local
host nation.
(4) For classified operations security (OPSEC), the Contractor
shall ensure that all personnel in direct contact with classified
OPSEC indicators (example: The unit, location, and time of
operations) have U.S. SECRET or higher personnel security
clearances, or, as appropriate, equivalent clearances assigned by
the National Security Authority of a NATO Member State or Major Non-
NATO Ally, in accordance with applicable security directives and
guidelines.
(5) For classified requirements, cleared satellite operator
staff must have access to secure voice communications for emergency
purposes. Communications security equipment certified by the
National Security Agency (NSA) to secure unclassified and up to and
including SECRET communication transmissions at all operations
centers is preferred. If a Contractor is unable to have access to
NSA-approved communications security equipment at its operations
centers, then a combination of a ``Sensitive but Unclassified''
(SBU) cryptographic module approved by the U.S. National Institute
for Standards and Technology and pre-arranged access to National
Security Agency-approved communications security equipment at an
agreed alternate facility is acceptable.
(6) The Contractor shall have the capability to ``mask'' or
``protect'' users against unauthorized release of identifying
information to any entity that could compromise operations security.
Identifying information includes but is not limited to personal user
and/or unit information including tail numbers, unit names, unit
numbers, individual names, individual contact numbers, street
addresses, etc.
(j) Third party billing for COMSATCOM subscription services. The
Contractor shall identify authorized network infrastructure for the
ordering activity. In some cases, the user of the terminal may
access network infrastructure owned or operated by a third party. In
the event a terminal is used on a third party's network
infrastructure, the Contractor shall provide to the ordering
activity, invoices and documentation reflecting actual usage amount
and third party charges incurred. The ordering activity shall be
billed the actual third party charges incurred, or the contract
third party billing price, whichever is less.
(End of clause)
552.238-111 Environmental Protection Agency Registration Requirement.
As prescribed in 538.273(d)(35), insert the following clause:
Environmental Protection Agency Registration Requirement (May 2019)
(a) With respect to the products described in this solicitation
which require registration with the Environmental Protection Agency
(EPA), as required by the Federal Insecticide, Fungicide, and
Rodenticide Act, Section 3, Registration of Pesticides, awards will
be made only for such products that have been assigned an EPA
registration number, prior to the time of bid opening.
(b) The offeror shall insert in the spaces provided in this
section, the manufacturer's and/or distributor's name and the ``EPA
Registration Number'' for each item offered. Any offer which does
not specify a current ``EPA Registration Number'' in effect for the
duration of the contract period, and including the manufacturer's
and/or distributor's name will be rejected.
----------------------------------------------------------------------------------------------------------------
Items
-----------------------------------------------------------------------------------------------------------------
Name of manufacturer/
Item numbers distributor EPA registration number Date of expiration
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
(c) If, during the performance of a contract awarded as a result
of this solicitation, the EPA Registration Number for products being
furnished is terminated, withdrawn, canceled, or suspended, and such
action does not arise out of causes beyond the control, and with the
fault or negligence of the Contractor or subcontractor, the
Government may terminate the contract pursuant to either the Default
Clause or Termination for Cause Paragraph (contained in the clause
52.212-4, Contract Terms and Conditions--Commercial Items),
whichever is applicable to the resultant contract.
(End of clause)
[[Page 17053]]
552.238-112 Definition (Federal Supply Schedules)--Non-Federal Entity.
As prescribed in 538.7004(a), insert the following clause:
Definition (Federal Supply Schedules)--Non-Federal Entity (May 2019)
Ordering activity (also called ``ordering agency'' and
``ordering office'') means an eligible ordering activity (see
552.238-113), authorized to place orders under Federal Supply
Schedule contracts.
(End of clause)
552.238-113 Scope of Contract (Eligible Ordering Activities).
As prescribed in 538.7004 (b) insert the following clause:
Scope of Contract (Eligible Ordering Activities) (May 2019)
(a) This solicitation is issued to establish contracts which may
be used on a nonmandatory basis by the agencies and activities named
below, as a source of supply for the supplies or services described
herein, for domestic and/or overseas delivery. For Special Item
Number 132-53, Wireless Services ONLY, limited geographic coverage
(consistent with the Offeror's commercial practice) may be proposed.
(1) Executive agencies (as defined in FAR Subpart 2.1) including
nonappropriated fund activities as prescribed in 41 CFR 101-26.000;
(2) Government contractors authorized in writing by a Federal
agency pursuant to FAR 51.1;
(3) Mixed ownership Government corporations (as defined in the
Government Corporation Control Act);
(4) Federal Agencies, including establishments in the
legislative or judicial branch of government (except the Senate, the
House of Representatives and the Architect of the Capitol and any
activities under the direction of the Architect of the Capitol).
(5) The District of Columbia;
(6) Tribal governments when authorized under 25 U.S.C. 450j(k);
(7) Tribes or tribally designated housing entities pursuant to
25 U.S.C. 4111(j);
(8) Qualified Nonprofit Agencies as authorized under 40 U.S.C.
502(b); and
(9) Organizations, other than those identified in paragraph (d)
of this clause, authorized by GSA pursuant to statute or regulation
to use GSA as a source of supply.
(b) Definitions.
Domestic delivery is delivery within the 48 contiguous states,
Alaska, Hawaii, Puerto Rico, Washington, DC, and U.S. territories.
Domestic delivery also includes a port or consolidation point,
within the aforementioned areas, for orders received from overseas
activities.
Overseas delivery is delivery to points outside of the 48
contiguous states, Washington, DC, Alaska, Hawaii, Puerto Rico, and
U.S. territories.
(c) Offerors are requested to check one of the following boxes:
[square] Contractor will provide domestic and overseas delivery.
[square] Contractor will provide overseas delivery only.
[square] Contractor will provide domestic delivery only.
(d) The following activities may place orders against Schedule
contracts:
(1) State and local government may place orders against Schedule
70 contracts, and Consolidated Schedule contracts containing
information technology Special Item Numbers, and Schedule 84
contracts, on an optional basis; PROVIDED, the Contractor accepts
order(s) from such activities;
(2) The American National Red Cross may place orders against
Federal Supply Schedules for products and services in furtherance of
the purposes set forth in its Federal charter (36 U.S.C. 300102);
PROVIDED, the Contractor accepts order(s) from the American National
Red Cross; and
(3) Other qualified organizations, as defined in section 309 of
the Robert T. Stafford Disaster Relief and Emergency Assistance Act
(42 U.S.C. 5152), may place orders against Federal Supply Schedules
for products and services determined to be appropriate to facilitate
emergency preparedness and disaster relief and set forth in guidance
by the Administrator of General Services, in consultation with the
Administrator of the Federal Emergency Management Agency; PROVIDED,
the Contractor accepts order(s) from such activities.
(4) State and local governments may place orders against Federal
Supply Schedules for good or services determined by the Secretary of
Homeland Security to facilitate recovery from a major disaster
declared by the President under the Robert T. Stafford Disaster
Relief and Emergency Assistance Act (42 U.S.C. 5121, et seq.) to
facilitate disaster preparedness or response, or to facilitate
recovery from terrorism or nuclear, biological, chemical, or
radiological attack; PROVIDED, the Contractor accepts order(s) from
such activities.
(e) Articles or services may be ordered from time to time in
such quantities as may be needed to fill any requirement, subject to
the Order Limitations thresholds which will be specified in
resultant contracts. Overseas activities may place orders directly
with schedule contractors for delivery to CONUS port or
consolidation point.
(f)(1) The Contractor is obligated to accept orders received
from activities within the Executive branch of the Federal
Government.
(2) The Contractor is not obligated to accept orders received
from activities outside the Executive branch; however, the
Contractor is encouraged to accept such orders. If the Contractor
elects to accept such orders, all provisions of the contract shall
apply, including clause 52.232-36 Payment by Third Party. If the
Contractor is unwilling to accept such orders, and the proposed
method of payment is not through the Credit Card, the Contractor
shall return the order by mail or other means of delivery within 5
workdays from receipt. If the Contractor is unwilling to accept such
orders, and the proposed method of payment is through the Credit
Card, the Contractor must so advise the ordering activity within 24
hours of receipt of order. (Reference clause 52.232-36 Payment by
Third Party.) Failure to return an order or advise the ordering
activity within the time frames of this paragraph shall constitute
acceptance whereupon all provisions of the contract shall apply.
(g) The Government is obligated to purchase under each resultant
contract a guaranteed minimum of $2,500 (two thousand, five hundred
dollars) during the contract term.
(h) All users of GSA's Federal Supply Schedules, including non-
Federal users, shall use the schedules in accordance with the
ordering guidance provided by the Administrator of General Services.
GSA encourages non-Federal users to follow the Schedule Ordering
Procedures set forth in the Federal Acquisition Regulation (FAR)
8.4, but they may use different established competitive ordering
procedures if such procedures are needed to satisfy their state and
local acquisition regulations and/or organizational policies.
(End of clause)
552.238-114 Use of Federal Supply Schedule Contracts by Non-Federal
Entities.
As prescribed in 538.7004(c), insert the following clause:
Use of Federal Supply Schedule Contracts by Non-Federal Entities (May
2019)
(a) If an entity identified in paragraph (d) of the clause at
552.238-113, Scope of Contract (Eligible Ordering Activities),
elects to place an order under this contract, the entity agrees that
the order shall be subject to the following conditions:
(1) When the Contractor accepts an order from such an entity, a
separate contract is formed which incorporates by reference all the
terms and conditions of the Schedule contract except the Disputes
clause, the patent indemnity clause, and the portion of the
Commercial Item Contract Terms and Conditions that specifies
``Compliance with laws unique to Government contracts'' (which
applies only to contracts with entities of the Executive branch of
the U.S. Government). The parties to this new contract which
incorporates the terms and conditions of the Schedule contract are
the individual ordering activity and the Contractor. The U.S.
Government shall not be liable for the performance or nonperformance
of the new contract. Disputes which cannot be resolved by the
parties to the new contract may be litigated in any State or Federal
court with jurisdiction over the parties, applying Federal
procurement law, including statutes, regulations and case law, and,
if pertinent, the Uniform Commercial Code. To the extent authorized
by law, parties to this new contract are encouraged to resolve
disputes through Alternative Dispute Resolution. Likewise, a Blanket
Purchase Agreement (BPA), although not a contract, is an agreement
that may be entered into by the Contractor with such an entity and
the Federal Government is not a party.
(2) Where contract clauses refer to action by a Contracting
Officer or a Contracting Officer of GSA, that shall mean the
individual responsible for placing the order for the ordering
activity (e.g., FAR 52.212-4 at paragraph (f) and FSS clause I-FSS-
249 B.)
[[Page 17054]]
(3) As a condition of using this contract, eligible ordering
activities agree to abide by all terms and conditions of the
Schedule contract, except for those deleted clauses or portions of
clauses mentioned in paragraph (a)(1) of this clause. Ordering
activities may include terms and conditions required by statute,
ordinance, regulation, order, or as otherwise allowed by State and
local government entities as a part of a statement of work (SOW) or
statement of objective (SOO) to the extent that these terms and
conditions do not conflict with the terms and conditions of the
Schedule contract. The ordering activity and the Contractor
expressly acknowledge that, in entering into an agreement for the
ordering activity to purchase goods or services from the Contractor,
neither the ordering activity nor the Contractor will look to,
primarily or in any secondary capacity, or file any claim against
the United States or any of its agencies with respect to any failure
of performance by the other party.
(4) The ordering activity is responsible for all payments due
the Contractor under the contract formed by acceptance of the
ordering activity's order, without recourse to the agency of the
U.S. Government, which awarded the Schedule contract.
(5) The Contractor is encouraged, but not obligated, to accept
orders from such entities. The Contractor may, within 5 days of
receipt of the order, decline to accept any order, for any reason.
The Contractor shall fulfill orders placed by such entities, which
are not declined within the 5-day period.
(6) The supplies or services purchased will be used for
governmental purposes only and will not be resold for personal use.
Disposal of property acquired will be in accordance with the
established procedures of the ordering activity for the disposal of
personal property.
(b) If the Schedule Contractor accepts an order from an entity
identified in paragraph (d) of the clause at 552.238-113, Scope of
Contract (Eligible Ordering Activities), the Contractor agrees to
the following conditions:
(1) The ordering activity is responsible for all payments due
the Contractor for the contract formed by acceptance of the order,
without recourse to the agency of the U.S. Government, which awarded
the Schedule contract.
(2) The Contractor is encouraged, but not obligated, to accept
orders from such entities. The Contractor may, within 5 days of
receipt of the order, decline to accept any order, for any reason.
The Contractor shall decline the order using the same means as those
used to place the order. The Contractor shall fulfill orders placed
by such entities, which are not declined within the 5-day period.
(c) In accordance with clause 552.238-80, Industrial Funding Fee
and Sales Reporting, the Contractor must report the quarterly dollar
value of all sales under this contract. When submitting sales
reports, the Contractor must report two dollar values for each
Special Item Number:
(1) The dollar value for sales to entities identified in
paragraph (a) of the clause at 552.238-113, Scope of Contract
(Eligible Ordering Activities), and
(2) The dollar value for sales to entities identified in
paragraph (d) of clause 552.238-113 Scope of Contract (Eligible
Ordering Activities).
(End of clause)
552.238-115 Special Ordering Procedures for the Acquisition of Order-
Level Materials.
As prescribed in 538.7204(b), insert the following clause:
Special Ordering Procedures for the Acquisition of Order-Level
Materials (May 2019)
(a) Definition.
Order-level materials means supplies and/or services acquired in
direct support of an individual task or delivery order placed
against a Federal Supply Schedule (FSS) contract or FSS blanket
purchase agreement (BPA), when the supplies and/or services are not
known at the time of Schedule contract or FSS BPA award. The prices
of order-level materials are not established in the FSS contract or
FSS BPA. Order-level materials acquired following the procedures in
paragraph (d) of this section are done so under the authority of the
FSS program, pursuant to 41 U.S.C. 152(3), and are not open market
items, which are discussed in FAR 8.402(f).
(b) FAR 8.403(b) provides that GSA may establish special
ordering procedures for a particular FSS.
(c) The procedures in FAR subpart 8.4 apply to this contract,
with the exceptions listed in this clause. If a requirement in this
clause is inconsistent with FAR subpart 8.4, this clause takes
precedence pursuant to FAR 8.403(b).
(d) Procedures for including order-level materials when placing
an individual task or delivery order against an FSS contract or FSS
BPA.
(1) The procedures discussed in FAR 8.402(f) do not apply when
placing task and delivery orders that include order-level materials.
(2) Order-level materials are included in the definition of the
term ``material'' in FAR clause 52.212-4 Alternate I, and therefore
all provisions of FAR clause 52.212-4 Alternate I that apply to
``materials'' also apply to order-level materials. The ordering
activity shall follow procedures under the Federal Travel Regulation
and FAR Part 31 when order-level materials include travel.
(3) Order-level materials shall only be acquired in direct
support of an individual task or delivery order and not as the
primary basis or purpose of the order.
(4) The value of order-level materials in a task or delivery
order, or the cumulative value of order-level materials in orders
against an FSS BPA awarded under a FSS contract shall not exceed
33.33%.
(5) All order-level materials shall be placed under the Order-
Level Materials SIN.
(6) Prior to the placement of an order that includes order-level
materials, the Ordering Activity shall follow procedures in FAR
8.404(h).
(7) To support the price reasonableness of order-level
materials--
(i) The contractor proposing order-level materials as part of a
solution shall obtain a minimum of three quotes for each order-level
material above the simplified acquisition threshold.
(A) One of these three quotes may include materials furnished by
the contractor under FAR 52.212-4 Alt I (i)(1)(ii)(A).
(B) If the contractor cannot obtain three quotes, the contractor
shall maintain its documentation of why three quotes could not be
obtained to support their determination.
(C) A contractor with an approved purchasing system per FAR 44.3
shall instead follow its purchasing system requirement and is exempt
from the requirements in paragraphs (d)(7)(i)(A)-(B) of this clause.
(ii) The Ordering Activity Contracting Officer must make a
determination that prices for all order-level materials are fair and
reasonable. The Ordering Activity Contracting Officer may base this
determination on a comparison of the quotes received in response to
the task or delivery order solicitation or other relevant pricing
information available.
(iii) If indirect costs are approved per FAR 52.212-
4(i)(1)(ii)(D)(2) Alternate I), the Ordering Activity Contracting
Officer must make a determination that all indirect costs approved
for payment are fair and reasonable. Supporting data shall be
submitted in a form acceptable to the Ordering Activity Contracting
Officer.
(8) Prior to an increase in the ceiling price of order-level
materials, the Ordering Activity Contracting Officer shall follow
the procedures at FAR 8.404(h)(3)(iv).
(9) In accordance with GSAR clause 552.238-83, Examination of
Records by GSA, GSA has the authority to examine the Contractor's
records for compliance with the pricing provisions in FAR clause
52.212-4 Alternate I, to include examination of any books,
documents, papers, and records involving transactions related to the
contract for overbillings, billing errors, and compliance with the
IFF and the Sales Reporting clauses of the contract.
(10) OLMs are exempt from the following clauses:
(i) 552.216-70 Economic Price Adjustment--FSS Multiple Award
Schedule Contracts.
(ii) 552.238-77 Submission and Distribution of Authorized FSS
Schedule Pricelists.
(iii) 552.238-81 Price Reductions.
(11) Exceptions for travel. (i) Travel costs are governed by FAR
31.205-46 and therefore the requirements in paragraph (d)(7) do not
apply to travel costs.
(ii) Travel costs do not count towards the 33.33% limitation
described in paragraph (d)(4) of this section.
(iii) Travel costs are exempt from clause 552.238-80 Industrial
Funding Fee and Sales Reporting.
(End of clause)
[FR Doc. 2019-08012 Filed 4-22-19; 8:45 am]
BILLING CODE 6820-61-P
