General Services Administration Acquisition Regulation; Standardizing Federal Supply Schedule Clause and Provision Prescriptions, 2172-2174 [2024-00519]
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Federal Register / Vol. 89, No. 9 / Friday, January 12, 2024 / Rules and Regulations
language is the language that instructs
when a clause is to be applied, when
establishing a Schedule contract.
GENERAL SERVICES
ADMINISTRATION
48 CFR Part 538
II. Discussion and Analysis
[GSAR Case 2022–G514; Docket No. GSA–
GSAR–2023–0009; Sequence No. 1]
RIN 3090–AK58
General Services Administration
Acquisition Regulation; Standardizing
Federal Supply Schedule Clause and
Provision Prescriptions
Office of Acquisition Policy,
General Services Administration (GSA).
ACTION: Final rule.
AGENCY:
The General Services
Administration is issuing this final rule
amending the General Services
Administration Acquisition Regulation
(GSAR) to clarify when GSAR clauses
apply to Federal Supply Schedule
contracts.
SUMMARY:
DATES:
Effective: February 12, 2024.
For
clarification of content, contact Ms.
Adina Torberntsson, Procurement
Analyst, at gsarpolicy@gsa.gov or 720–
475–0568. For information pertaining to
status or publication schedules, contact
the Regulatory Secretariat at gsaregsec@
gsa.gov or 202–501–4755. Please cite
GSAR Case 2022–G514.
SUPPLEMENTARY INFORMATION:
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FOR FURTHER INFORMATION CONTACT:
I. Background
GSA published a proposed rule in the
Federal Register at 88 FR 15941 on
March 15, 2023 to amend the GSAR to
address when the GSAR clauses apply
to Federal Supply Schedule contracts
established by a delegated agency.
The GSA Schedule, also known as
Federal Supply Schedule (FSS), and/or
Multiple Award Schedule (MAS), is a
long-term governmentwide contract
with commercial companies that
provide access to millions of
commercial products and services at fair
and reasonable prices to the Federal
Government. GSA may delegate certain
responsibilities to other agencies (i.e.,
GSA has delegated authority to the
Department of Veterans Affairs (VA) to
procure medical supplies under the VA
Federal Supply Schedules Program).
Such delegation provides the
authorized agency autonomy over their
resulting contract. The contract is
published on the FSS website, and often
looks like every other available FSS
contract apart from the naming
convention. Contracts administered
solely by GSA have a ‘‘GS’’ naming
convention.
This change will streamline the
prescription language. Prescription
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Jkt 262001
Analysis of Public Comments
GSA provided the public a 60-day
comment period (March 15, 2023, to
May 15, 2023). GSA did not receive any
comments from the public.
Summary of Changes
GSA did not make any significant
changes, or changes of any kind, since
publication of the proposed rule.
III. Expected Impact of the Rule
This final rule will ensure GSA’s
contracting officers are using the clauses
correctly, clarifies how GSA’s
delegation to other Government
agencies work, provides instruction on
how to document the contract file, and
the procedures for requesting a
deviation. This change will have no
impact on the approximately 13,000
FSS contractors already using the
existing clauses. The changes do not
alter the manner in which the
contractors conduct business.
IV. Executive Orders 12866, 13563 and
14094
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. E.O. 14094 (Modernizing
Regulatory Review) supplements and
reaffirms the principles, structures, and
definitions governing contemporary
regulatory review established in E.O.
12866 and E.O. 13563. The Office of
Information and Regulatory Affairs
(OIRA) in the Office of Management and
Budget (OMB) has determined that this
is not a significant regulatory action
and, therefore, was not subject to review
under Section 6(b) of Executive Order
12866, Regulatory Planning and Review,
dated September 30, 1993.
V. Congressional Review Act
The Congressional Review Act, 5
U.S.C. 801 et seq., as amended by the
Small Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a ‘‘major rule’’ may take
effect, the agency promulgating the rule
must submit a rule report, which
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includes a copy of the rule, to each
House of the Congress and to the
Comptroller General of the United
States. The General Services
Administration will submit a report
containing this rule and other required
information to the U.S. Senate, the U.S.
House of Representatives, and the
Comptroller General of the United
States. A major rule cannot take effect
until 60 days after it is published in the
Federal Register. OIRA has determined
this rule is not to be a ‘‘major rule’’
under 5 U.S.C. 804.
VI. Regulatory Flexibility Act
GSA does not expect this rule to have
a significant economic impact on a
substantial number of small entities
within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq.,
because the described changes clarify
the language and only slightly modify
the current text. The meaning behind
the changed text remains the same, and
therefore any burden would have been
identified previously. However, a Final
Regulatory Flexibility Analysis (FRFA)
has been prepared. The FRFA has been
prepared consistent with the criteria of
5 U.S.C. 604 and is summarized as
follows:
The objective of the final rule is to improve
the understanding of delegation and
coordination expectations of FSS policies for
delegated agencies. There were no comments
submitted and therefore no significant issues
raised by the public in response to the initial
regulatory flexibility analysis.
Title 40 of the United States Code (U.S.C.)
Section 121 authorizes GSA to issue
regulations, including the GSAR, to control
the relationship between GSA and
contractors. In addition, 41 U.S.C. 152
provides GSA authority over the FSS
program.
The final rule applies to large and small
businesses, which are awarded FSS
contracts. Information generated from the
System for Award Management (SAM), for
Fiscal Year 2022 has been used as the basis
for estimating the number of contractors that
may be involved. Specifically, FSS contracts
for delegated agencies (i.e., Department of
Veteran Affairs) were analyzed. Examination
of this data revealed 1,700 applicable FSS
contracts were awarded. Of these 1,700 new
awards, 1,417 (83 percent) contract awards
were to small business entities.
The final rule does not change reporting,
recordkeeping, or other compliance
requirements for FSS contracts. The rule
merely clarifies requirements currently in use
in FSS solicitations and contracts, and does
not implement new or changed requirements.
The final rule does not duplicate, overlap,
or conflict with any other Federal rules.
There are no known alternatives to this
final rule which would accomplish the stated
objectives. This rule does not initiate or
impose any new administrative or
performance requirements on small business
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Federal Register / Vol. 89, No. 9 / Friday, January 12, 2024 / Rules and Regulations
contractors because the policies are already
being followed. The final rule merely
clarifies language in the GSAR to make it
more accessible to the reader by removing
references to outdated clauses or excessive
language.
The Regulatory Secretariat Division
will be submitting a copy of the FRFA
to the Chief Counsel for Advocacy of the
Small Business Administration. A copy
of the FRFA may be obtained from the
Regulatory Secretariat Division.
VII. Paperwork Reduction Act
The rule does not contain any
information collection requirements that
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
Government procurement.
Jeffrey A. Koses,
Senior Procurement Executive, Office of
Acquisition Policy, Office of Governmentwide Policy, General Services Administration.
Therefore, GSA amends 48 CFR part
538 as set forth below:
PART 538—FEDERAL SUPPLY
SCHEDULE CONTRACTING
1. The authority citation for part 538
continues to read as follows:
■
Authority: 40 U.S.C. 121(c).
2. Add sections 538.000 and 538.001
to read as follows:
■
Scope of part.
(a) This part prescribes policies and
procedures for contracting for supplies
and services under the Federal Supply
Schedule (FSS) program. GSA may
delegate certain responsibilities for
other agency acquisition programs as
they relate to the establishment of
individual federal supply schedules.
(b) The authority of other agencies to
award FSS contracts can only be
accomplished through delegation from
GSA. An agency delegated authority by
GSA to award contracts under the FSS
program is responsible for complying
with GSA regulations and policies that
apply to the FSS program, unless an
exception is approved by GSA (see
538.001).
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538.001
General.
If a policy, regulation, or clause is
identified as not applicable or in
conflict to what is delegated by GSA,
the delegated agency shall submit a
determination and finding supporting
the rationale as to why it does not
apply, or is in conflict, in accordance
with the delegation that was already
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Jkt 262001
538.201
Coordination requirements.
GSA will coordinate with other
agencies who administer FSS contracts
specific to their delegated authority (i.e.,
the Department of Veterans Affairs).
Coordination will ensure adherence to
policies and procedures at the program
level, such as providing guidance on
approved exceptions (see 538.001).
■ 4. Revise section 538.273 to read as
follows:
538.273 FSS solicitation provisions and
contract clauses.
List of Subjects in 48 CFR Part 538
538.000
received from GSA. The determination
and finding must be approved by the
GSA Senior Procurement Executive, the
Commissioner of the Federal
Acquisition Service (FAS) or a designee.
■ 3. Add section 538.201 to subpart
538.2 to read as follows:
The following clauses and provisions
apply to FSS solicitations and contracts,
unless otherwise excepted (see 538.001)
or as otherwise stated below. For
example, if only used in solicitations,
the prescription will clearly state this. If
the language does not specify
‘‘solicitations’’ then the clause applies
to both FSS solicitations and contracts.
(a) Insert the following provisions in
FSS solicitations:
(1) 552.238–70, Cover Page for
Worldwide Federal Supply Schedules.
Use in all FSS solicitations.
(2) 552.238–71, Notice of Total Small
Business Set-Aside. Use in FSS
solicitations containing special item
numbers (SINs) that are set aside for
small business.
(3) 552.238–72, Information
Collection Requirements. Use in all FSS
solicitations.
(b) Insert the following clauses and
provisions in FSS solicitations and
contracts as an addendum to FAR
52.212–1, Instructions to Offerors—
Commercial Products and Commercial
Services:
(1) 552.238–73, Identification of
Electronic Office Equipment Providing
Accessibility for Individuals with
Disabilities. the Handicapped. Use only
in FSS solicitations for electronic office
equipment.
(2) 552.238–74, Introduction of New
Supplies/Services (INSS). Only for those
solicitations allowing the introduction
of new supplies/services. Note: GSA
Form 1649, Notification of Federal
Supply Schedule Improvement, may be
required if revising a Special Item
Number (SIN).
(c) Insert the following provisions in
FSS solicitations as an addendum to
FAR 52.212–2, Evaluation—Commercial
Products and Commercial Services:
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2173
(1) 552.238–75, Evaluation—
Commercial Products and Commercial
Services (Federal Supply Schedule).
(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) Insert the following clauses in FSS
solicitations and contracts as an
addendum to Clause FAR 52.212–4,
Contract Terms and Conditions—
Commercial Products and Commercial
Services:
(1) 552.238–77, Submission and
Distribution of Authorized Federal
Supply Schedule Price Lists.
(2) 552.238–78, Identification of
Products that have Environmental
Attributes. Use only in solicitations and
contracts that contemplate products
with environmental attributes.
(3) 552.238–79, Cancellation.
(4) 552.238–80, Industrial Funding
Fee and Sales Reporting. Use Alternate
I for FSS with Transactional Data
Reporting requirements.
(5) 552.238–81, Price Reductions. Use
Alternate I for FSS with Transactional
Data Reporting requirements.
(6) 552.238–82, Modifications
(Federal Supply Schedules).
(i) Use Alternate I for FSS that only
accept eMod.
(ii) Use Alternate II for FSS with
Transactional Data Reporting
requirements.
(7) 552.238–83, Examination of
Records by GSA (Federal Supply
Schedules).
(8) 552.238–84, Discounts for Prompt
Payment.
(9) 552.238–85, Contractor’s Billing
Responsibilities.
(10) 552.238–86, Delivery Schedule.
Use only for supplies.
(11) 552.238–87, Delivery Prices.
(12) 552.238–88, GSA Advantage!®.
This clause is not required for the
Department of Veterans Affairs Federal
Supply Schedules.
(13) 552.238–89, Deliveries to the U.S.
Postal Service. Use only for mailable
articles when delivery to a U.S. Postal
Service (USPS) facility is contemplated.
(14) 552.238–90, Characteristics of
Electric Current. Use only when the
supply of equipment which uses
electrical current is contemplated.
(15) 552.238–91, Marking and
Documentation Requirements for
Shipping. Use only for supplies when
the need for outlining the minimum
information and documentation
required for shipping is contemplated.
(16) 552.238–92, Vendor Managed
Inventory (VMI) Program. Use only for
supplies when a VMI Program is
contemplated.
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Federal Register / Vol. 89, No. 9 / Friday, January 12, 2024 / Rules and Regulations
(17) 552.238–93, Order
Acknowledgement. Use only for
supplies.
(18) 552.238–94, Accelerated Delivery
Requirements. Use only for supplies.
(19) 552.238–95, Separate Charge for
Performance Oriented Packaging (POP).
Use only for products defined as
hazardous under Federal Standard No.
313.
(20) 552.238–96, Separate Charge for
Delivery within Consignee’s Premises.
Use only for supplies when allowing
offerors to propose separate charges for
deliveries within the consignee’s
premises.
(21) 552.238–97, Parts and Service.
(22) 552.238–98, Clauses for Overseas
Coverage. Use only when overseas
acquisition is contemplated. Choose the
most appropriate clause(s) to the
contract scenario. For example there are
multiple free on board (F.o.b.) clauses.
Select those that apply best to what is
being procured. The following clauses
and provisions shall also be inserted in
full text, when applicable.
(i) FAR 52.214–34 Submission of
Offers in the English Language.
(ii) FAR 52.214–35 Submission of
Offers in U.S. Currency.
(iii) 552.238–90 Characteristics of
Electric Current.
(iv) 552.238–91 Marking and
Documentation Requirements for
Shipping.
(v) 552.238–97 Parts and Service.
(vi) 552.238–99 Delivery Prices
Overseas.
(vii) 552.238–100 Transshipments.
(viii) 552.238–101 Foreign Taxes and
Duties.
(ix) FAR 52.247–29 F.o.b Origin.
(x) FAR 52.247–34 F.o.b. Destination.
(xi) FAR 52.247–48 F.o.b.
Destination—Evidence of Shipment.
(23) 552.238–99, Delivery Prices
Overseas. Use only when overseas
acquisition is contemplated.
(24) 552.238–100, Transshipments.
Use only when overseas acquisition is
contemplated.
(25) 552.238–101, Foreign Taxes and
Duties. Use only when overseas
acquisition is contemplated.
(26) 552.238–102, English Language
and U.S. Dollar Requirements.
(27) 552.238–103, Electronic
Commerce. This clause is not required
for Department of Veterans Affairs
Federal Supply Schedules.
(28) 552.238–104, Dissemination of
Information by Contractor.
(29) 552.238–105, Deliveries Beyond
the Contractual Period—Placing of
Orders.
(30) 552.238–106, Interpretation of
Contract Requirements.
(31) 552.238–107, Export Traffic
Release (Supplies). Use in FSS
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15:08 Jan 11, 2024
Jkt 262001
solicitations and contracts for supplies.
This clause is not required for vehicles.
(32) 552.238–108, Spare Parts Kit. Use
only for products requiring spare part
kits. This information is to be specified
at the order level.
(33) 552.238–109, Authentication
Supplies and Services. Use only for
information technology associated with
the Homeland Security Presidential
Directive 12 (HSPD–12).
(34) 552.238–110, Commercial
Satellite Communication
(COMSATCOM) Services. Use only for
COMSATCOM services.
(35) 552.238–111, Environmental
Protection Agency Registration
Requirement. Use only for supplies
when products may require registration
with the Environmental Protection
Agency.
(36) 552.238–116, Option to Extend
the Term of the FSS Contract. Use when
appropriate.
(e) Insert the following fill-in
information within the blank of
paragraph (d) of FAR clause 52.216–22,
Indefinite Quantity: ‘‘the completion of
customer order, including options, 60
months following the expiration of the
FSS contract ordering period’’.
[FR Doc. 2024–00519 Filed 1–11–24; 8:45 am]
BILLING CODE 6820–61–P
SURFACE TRANSPORTATION BOARD
49 CFR Part 1022
[Docket No. EP 716 (Sub-No. 9)]
Civil Monetary Penalties—2024
Adjustment
Surface Transportation Board.
Final rule.
AGENCY:
ACTION:
The Surface Transportation
Board (Board) is issuing a final rule to
implement the annual inflationary
adjustment to its civil monetary
penalties, pursuant to the Federal Civil
Penalties Inflation Adjustment Act
Improvements Act of 2015.
DATES: This final rule is effective
January 12, 2024.
FOR FURTHER INFORMATION CONTACT:
Amy Ziehm at (202) 245–0391. If you
require an accommodation under the
Americans with Disabilities Act, please
call (202) 245–0245.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
The Federal Civil Penalties Inflation
Adjustment Act Improvements Act of
2015 (2015 Act), enacted as part of the
Bipartisan Budget Act of 2015, Public
Law 114–74, 701, 129 Stat. 584, 599–
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Frm 00064
Fmt 4700
Sfmt 4700
601, requires agencies to adjust their
civil penalties for inflation annually,
beginning on July 1, 2016, and no later
than January 15 of every year thereafter.
In accordance with the 2015 Act, annual
inflation adjustments are to be based on
the percent change between the
Consumer Price Index for all Urban
Consumers (CPI–U) for October of the
previous year and the October CPI–U of
the year before that. Penalty level
adjustments should be rounded to the
nearest dollar.
II. Discussion
The statutory definition of civil
monetary penalty covers various civil
penalty provisions under the Rail (Part
A); Motor Carriers, Water Carriers,
Brokers, and Freight Forwarders (Part
B); and Pipeline Carriers (Part C)
provisions of the Interstate Commerce
Act, as amended. The Board’s civil (and
criminal) penalty authority related to
rail transportation appears at 49 U.S.C.
11901–11908. The Board’s penalty
authority related to motor carriers, water
carriers, brokers, and freight forwarders
appears at 49 U.S.C. 14901–14916. The
Board’s penalty authority related to
pipeline carriers appears at 49 U.S.C.
16101–16106.1 The Board has
regulations at 49 CFR pt. 1022 that
codify the method set forth in the 2015
Act for annually adjusting for inflation
the civil monetary penalties within the
Board’s jurisdiction.
As set forth in this final rule, the
Board is amending 49 CFR part 1022 to
make an annual inflation adjustment to
the civil monetary penalties in
conformance with the requirements of
the 2015 Act. The adjusted penalties set
forth in the rule will apply only to
violations that occur after the effective
date of this regulation.
In accordance with the 2015 Act, the
annual adjustment adopted here is
calculated by multiplying each current
penalty by the cost-of-living adjustment
factor of 1.03241, which reflects the
percentage change between the October
2023 CPI–U (307.671) and the October
2022 CPI–U (298.012). The table at the
end of this decision shows the statutory
citation for each civil penalty, a
description of the provision, the
adjusted statutory civil penalty level for
2023, and the adjusted statutory civil
penalty level for 2024.
1 The Board also has various criminal penalty
authority, enforceable in a federal criminal court.
Congress has not, however, authorized federal
agencies to adjust statutorily prescribed criminal
penalty provisions for inflation, and this rule does
not address those provisions.
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]]>Agencies
[Federal Register Volume 89, Number 9 (Friday, January 12, 2024)]
[Rules and Regulations]
[Pages 2172-2174]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00519]
[[Page 2172]]
=======================================================================
-----------------------------------------------------------------------
GENERAL SERVICES ADMINISTRATION
48 CFR Part 538
[GSAR Case 2022-G514; Docket No. GSA-GSAR-2023-0009; Sequence No. 1]
RIN 3090-AK58
General Services Administration Acquisition Regulation;
Standardizing Federal Supply Schedule Clause and Provision
Prescriptions
AGENCY: Office of Acquisition Policy, General Services Administration
(GSA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The General Services Administration is issuing this final rule
amending the General Services Administration Acquisition Regulation
(GSAR) to clarify when GSAR clauses apply to Federal Supply Schedule
contracts.
DATES: Effective: February 12, 2024.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Adina Torberntsson, Procurement Analyst, at [email protected] or
720-475-0568. For information pertaining to status or publication
schedules, contact the Regulatory Secretariat at [email protected] or
202-501-4755. Please cite GSAR Case 2022-G514.
SUPPLEMENTARY INFORMATION:
I. Background
GSA published a proposed rule in the Federal Register at 88 FR
15941 on March 15, 2023 to amend the GSAR to address when the GSAR
clauses apply to Federal Supply Schedule contracts established by a
delegated agency.
The GSA Schedule, also known as Federal Supply Schedule (FSS), and/
or Multiple Award Schedule (MAS), is a long-term governmentwide
contract with commercial companies that provide access to millions of
commercial products and services at fair and reasonable prices to the
Federal Government. GSA may delegate certain responsibilities to other
agencies (i.e., GSA has delegated authority to the Department of
Veterans Affairs (VA) to procure medical supplies under the VA Federal
Supply Schedules Program).
Such delegation provides the authorized agency autonomy over their
resulting contract. The contract is published on the FSS website, and
often looks like every other available FSS contract apart from the
naming convention. Contracts administered solely by GSA have a ``GS''
naming convention.
This change will streamline the prescription language. Prescription
language is the language that instructs when a clause is to be applied,
when establishing a Schedule contract.
II. Discussion and Analysis
Analysis of Public Comments
GSA provided the public a 60-day comment period (March 15, 2023, to
May 15, 2023). GSA did not receive any comments from the public.
Summary of Changes
GSA did not make any significant changes, or changes of any kind,
since publication of the proposed rule.
III. Expected Impact of the Rule
This final rule will ensure GSA's contracting officers are using
the clauses correctly, clarifies how GSA's delegation to other
Government agencies work, provides instruction on how to document the
contract file, and the procedures for requesting a deviation. This
change will have no impact on the approximately 13,000 FSS contractors
already using the existing clauses. The changes do not alter the manner
in which the contractors conduct business.
IV. Executive Orders 12866, 13563 and 14094
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
E.O. 14094 (Modernizing Regulatory Review) supplements and reaffirms
the principles, structures, and definitions governing contemporary
regulatory review established in E.O. 12866 and E.O. 13563. The Office
of Information and Regulatory Affairs (OIRA) in the Office of
Management and Budget (OMB) has determined that this is not a
significant regulatory action and, therefore, was not subject to review
under Section 6(b) of Executive Order 12866, Regulatory Planning and
Review, dated September 30, 1993.
V. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by
the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a ``major rule'' may take effect, the
agency promulgating the rule must submit a rule report, which includes
a copy of the rule, to each House of the Congress and to the
Comptroller General of the United States. The General Services
Administration will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States. A
major rule cannot take effect until 60 days after it is published in
the Federal Register. OIRA has determined this rule is not to be a
``major rule'' under 5 U.S.C. 804.
VI. Regulatory Flexibility Act
GSA does not expect this rule to have a significant economic impact
on a substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the
described changes clarify the language and only slightly modify the
current text. The meaning behind the changed text remains the same, and
therefore any burden would have been identified previously. However, a
Final Regulatory Flexibility Analysis (FRFA) has been prepared. The
FRFA has been prepared consistent with the criteria of 5 U.S.C. 604 and
is summarized as follows:
The objective of the final rule is to improve the understanding
of delegation and coordination expectations of FSS policies for
delegated agencies. There were no comments submitted and therefore
no significant issues raised by the public in response to the
initial regulatory flexibility analysis.
Title 40 of the United States Code (U.S.C.) Section 121
authorizes GSA to issue regulations, including the GSAR, to control
the relationship between GSA and contractors. In addition, 41 U.S.C.
152 provides GSA authority over the FSS program.
The final rule applies to large and small businesses, which are
awarded FSS contracts. Information generated from the System for
Award Management (SAM), for Fiscal Year 2022 has been used as the
basis for estimating the number of contractors that may be involved.
Specifically, FSS contracts for delegated agencies (i.e., Department
of Veteran Affairs) were analyzed. Examination of this data revealed
1,700 applicable FSS contracts were awarded. Of these 1,700 new
awards, 1,417 (83 percent) contract awards were to small business
entities.
The final rule does not change reporting, recordkeeping, or
other compliance requirements for FSS contracts. The rule merely
clarifies requirements currently in use in FSS solicitations and
contracts, and does not implement new or changed requirements.
The final rule does not duplicate, overlap, or conflict with any
other Federal rules.
There are no known alternatives to this final rule which would
accomplish the stated objectives. This rule does not initiate or
impose any new administrative or performance requirements on small
business
[[Page 2173]]
contractors because the policies are already being followed. The
final rule merely clarifies language in the GSAR to make it more
accessible to the reader by removing references to outdated clauses
or excessive language.
The Regulatory Secretariat Division will be submitting a copy of
the FRFA to the Chief Counsel for Advocacy of the Small Business
Administration. A copy of the FRFA may be obtained from the Regulatory
Secretariat Division.
VII. Paperwork Reduction Act
The rule does not contain any information collection requirements
that require the approval of the Office of Management and Budget under
the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Part 538
Government procurement.
Jeffrey A. Koses,
Senior Procurement Executive, Office of Acquisition Policy, Office of
Government-wide Policy, General Services Administration.
Therefore, GSA amends 48 CFR part 538 as set forth below:
PART 538--FEDERAL SUPPLY SCHEDULE CONTRACTING
0
1. The authority citation for part 538 continues to read as follows:
Authority: 40 U.S.C. 121(c).
0
2. Add sections 538.000 and 538.001 to read as follows:
538.000 Scope of part.
(a) This part prescribes policies and procedures for contracting
for supplies and services under the Federal Supply Schedule (FSS)
program. GSA may delegate certain responsibilities for other agency
acquisition programs as they relate to the establishment of individual
federal supply schedules.
(b) The authority of other agencies to award FSS contracts can only
be accomplished through delegation from GSA. An agency delegated
authority by GSA to award contracts under the FSS program is
responsible for complying with GSA regulations and policies that apply
to the FSS program, unless an exception is approved by GSA (see
538.001).
538.001 General.
If a policy, regulation, or clause is identified as not applicable
or in conflict to what is delegated by GSA, the delegated agency shall
submit a determination and finding supporting the rationale as to why
it does not apply, or is in conflict, in accordance with the delegation
that was already received from GSA. The determination and finding must
be approved by the GSA Senior Procurement Executive, the Commissioner
of the Federal Acquisition Service (FAS) or a designee.
0
3. Add section 538.201 to subpart 538.2 to read as follows:
538.201 Coordination requirements.
GSA will coordinate with other agencies who administer FSS
contracts specific to their delegated authority (i.e., the Department
of Veterans Affairs). Coordination will ensure adherence to policies
and procedures at the program level, such as providing guidance on
approved exceptions (see 538.001).
0
4. Revise section 538.273 to read as follows:
538.273 FSS solicitation provisions and contract clauses.
The following clauses and provisions apply to FSS solicitations and
contracts, unless otherwise excepted (see 538.001) or as otherwise
stated below. For example, if only used in solicitations, the
prescription will clearly state this. If the language does not specify
``solicitations'' then the clause applies to both FSS solicitations and
contracts.
(a) Insert the following provisions in FSS solicitations:
(1) 552.238-70, Cover Page for Worldwide Federal Supply Schedules.
Use in all FSS solicitations.
(2) 552.238-71, Notice of Total Small Business Set-Aside. Use in
FSS solicitations containing special item numbers (SINs) that are set
aside for small business.
(3) 552.238-72, Information Collection Requirements. Use in all FSS
solicitations.
(b) Insert the following clauses and provisions in FSS
solicitations and contracts as an addendum to FAR 52.212-1,
Instructions to Offerors--Commercial Products and Commercial Services:
(1) 552.238-73, Identification of Electronic Office Equipment
Providing Accessibility for Individuals with Disabilities. the
Handicapped. Use only in FSS solicitations for electronic office
equipment.
(2) 552.238-74, Introduction of New Supplies/Services (INSS). Only
for those solicitations allowing the introduction of new supplies/
services. Note: GSA Form 1649, Notification of Federal Supply Schedule
Improvement, may be required if revising a Special Item Number (SIN).
(c) Insert the following provisions in FSS solicitations as an
addendum to FAR 52.212-2, Evaluation--Commercial Products and
Commercial Services:
(1) 552.238-75, Evaluation--Commercial Products and Commercial
Services (Federal Supply Schedule).
(2) 552.238-76, Use of Non-Government Employees to Review Offers.
Use only in FSS solicitations when non-government employees may be
utilized to review solicitation responses.
(d) Insert the following clauses in FSS solicitations and contracts
as an addendum to Clause FAR 52.212-4, Contract Terms and Conditions--
Commercial Products and Commercial Services:
(1) 552.238-77, Submission and Distribution of Authorized Federal
Supply Schedule Price Lists.
(2) 552.238-78, Identification of Products that have Environmental
Attributes. Use only in solicitations and contracts that contemplate
products with environmental attributes.
(3) 552.238-79, Cancellation.
(4) 552.238-80, Industrial Funding Fee and Sales Reporting. Use
Alternate I for FSS with Transactional Data Reporting requirements.
(5) 552.238-81, Price Reductions. Use Alternate I for FSS with
Transactional Data Reporting requirements.
(6) 552.238-82, Modifications (Federal Supply Schedules).
(i) Use Alternate I for FSS that only accept eMod.
(ii) Use Alternate II for FSS with Transactional Data Reporting
requirements.
(7) 552.238-83, Examination of Records by GSA (Federal Supply
Schedules).
(8) 552.238-84, Discounts for Prompt Payment.
(9) 552.238-85, Contractor's Billing Responsibilities.
(10) 552.238-86, Delivery Schedule. Use only for supplies.
(11) 552.238-87, Delivery Prices.
(12) 552.238-88, GSA Advantage![supreg]. This clause is not
required for the Department of Veterans Affairs Federal Supply
Schedules.
(13) 552.238-89, Deliveries to the U.S. Postal Service. Use only
for mailable articles when delivery to a U.S. Postal Service (USPS)
facility is contemplated.
(14) 552.238-90, Characteristics of Electric Current. Use only when
the supply of equipment which uses electrical current is contemplated.
(15) 552.238-91, Marking and Documentation Requirements for
Shipping. Use only for supplies when the need for outlining the minimum
information and documentation required for shipping is contemplated.
(16) 552.238-92, Vendor Managed Inventory (VMI) Program. Use only
for supplies when a VMI Program is contemplated.
[[Page 2174]]
(17) 552.238-93, Order Acknowledgement. Use only for supplies.
(18) 552.238-94, Accelerated Delivery Requirements. Use only for
supplies.
(19) 552.238-95, Separate Charge for Performance Oriented Packaging
(POP). Use only for products defined as hazardous under Federal
Standard No. 313.
(20) 552.238-96, Separate Charge for Delivery within Consignee's
Premises. Use only for supplies when allowing offerors to propose
separate charges for deliveries within the consignee's premises.
(21) 552.238-97, Parts and Service.
(22) 552.238-98, Clauses for Overseas Coverage. Use only when
overseas acquisition is contemplated. Choose the most appropriate
clause(s) to the contract scenario. For example there are multiple free
on board (F.o.b.) clauses. Select those that apply best to what is
being procured. The following clauses and provisions shall also be
inserted in full text, when applicable.
(i) FAR 52.214-34 Submission of Offers in the English Language.
(ii) FAR 52.214-35 Submission of Offers in U.S. Currency.
(iii) 552.238-90 Characteristics of Electric Current.
(iv) 552.238-91 Marking and Documentation Requirements for
Shipping.
(v) 552.238-97 Parts and Service.
(vi) 552.238-99 Delivery Prices Overseas.
(vii) 552.238-100 Transshipments.
(viii) 552.238-101 Foreign Taxes and Duties.
(ix) FAR 52.247-29 F.o.b Origin.
(x) FAR 52.247-34 F.o.b. Destination.
(xi) FAR 52.247-48 F.o.b. Destination--Evidence of Shipment.
(23) 552.238-99, Delivery Prices Overseas. Use only when overseas
acquisition is contemplated.
(24) 552.238-100, Transshipments. Use only when overseas
acquisition is contemplated.
(25) 552.238-101, Foreign Taxes and Duties. Use only when overseas
acquisition is contemplated.
(26) 552.238-102, English Language and U.S. Dollar Requirements.
(27) 552.238-103, Electronic Commerce. This clause is not required
for Department of Veterans Affairs Federal Supply Schedules.
(28) 552.238-104, Dissemination of Information by Contractor.
(29) 552.238-105, Deliveries Beyond the Contractual Period--Placing
of Orders.
(30) 552.238-106, Interpretation of Contract Requirements.
(31) 552.238-107, Export Traffic Release (Supplies). Use in FSS
solicitations and contracts for supplies. This clause is not required
for vehicles.
(32) 552.238-108, Spare Parts Kit. Use only for products requiring
spare part kits. This information is to be specified at the order
level.
(33) 552.238-109, Authentication Supplies and Services. Use only
for information technology associated with the Homeland Security
Presidential Directive 12 (HSPD-12).
(34) 552.238-110, Commercial Satellite Communication (COMSATCOM)
Services. Use only for COMSATCOM services.
(35) 552.238-111, Environmental Protection Agency Registration
Requirement. Use only for supplies when products may require
registration with the Environmental Protection Agency.
(36) 552.238-116, Option to Extend the Term of the FSS Contract.
Use when appropriate.
(e) Insert the following fill-in information within the blank of
paragraph (d) of FAR clause 52.216-22, Indefinite Quantity: ``the
completion of customer order, including options, 60 months following
the expiration of the FSS contract ordering period''.
[FR Doc. 2024-00519 Filed 1-11-24; 8:45 am]
BILLING CODE 6820-61-P
