General Services Administration Acquisition Regulation; Updated Guidance for Non-Federal Entities Access to Federal Supply Schedules, 13282-13287 [2024-03605]
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33. Both Viasat and Kepler opposed
Kuiper’s petition, arguing that Kuiper’s
proposed rule would undermine the
incentive for an operator to engage in
the type of inter-system coordination
anticipated by the 2020 Orbital Debris
Order and in essence create a first-come,
first-serve priority system for orbital
regions in LEO, which would advantage
the largest, most established satellite
operators, and potentially lead to a
monopolization of certain sections of
LEO. Viasat also stated that Kuiper has
not established that an orbital overlap
rule is necessary to promote space
safety, and that there are alternative
approaches the Commission could
consider.
34. The Commission continues to take
space safety issues seriously, and the
2020 Orbital Debris Order recognized
that issues may arise with respect to
large NGSO systems, and the orbits at
which they operate. Notably, the 2020
Orbital Debris Order advises that
applicants for large systems may be
asked to provide specific information
about their planned orbital variance as
well as how their system operations
would accommodate other spacecraft
traveling through or operating in the
same region. While Kuiper supported its
petition with the ‘‘new’’ fact that
applications for large NGSO systems
with competing orbits have been filed
since adoption of the 2020 Orbital
Debris Order, the Commission found
that this circumstance alone is not
sufficient justification for it to revisit its
decision to allow in the first instance
parties to work on an inter-operator
coordination agreement. At the time the
Commission adopted its 2020 Orbital
Debris Order it had already considered
that parties may want to use similar
orbits, but it also found that interoperator coordination could resolve any
space safety concerns, and no party has
introduced evidence that any such
concerns remain unresolved. The
Commission has continued to monitor
the situation since adoption of the 2020
Orbital Debris Order and continues to
believe that the best solution for
maintaining space safety is for operators
to have the flexibility to coordinate in
a manner that works best for their
situation, rather than have the
Commission dictate how that
coordination should proceed. In
addition, the Commission reviews
closely applications for new licenses or
modifications that may raise
overlapping orbital shell issues and
works with the applicants and other
interested parties to ensure that either
coordination has occurred to minimize
space safety issues, or changes are made
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to the proposed operating parameters to
address any remaining concerns. The
Commission will continue to monitor
the overall orbital separation
environment, and to the extent it sees a
breakdown in the coordination process
or other space safety issues, it will
consider at that time whether new
general rules are needed to either
improve the coordination process or
address space safety concerns.
Accordingly, the Commission declined
to establish an orbital separation
requirement, including for large NGSO
constellations.
IV. Ordering Clauses
35. Accordingly, it is ordered,
pursuant to 47 U.S.C. 151, 154(i), 154(j),
405, and 47 CFR 1.429(b) that the
petitions for reconsideration filed by
Boeing, EchoStar, Hughes, Planet, Spire,
Telesat, SpaceX, and Kuiper in IB
Docket No. 18–313, are denied.
36. It is further ordered that the
Orbital Debris Reconsideration Order
shall be effective upon publication in
the Federal Register.
Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2024–03506 Filed 2–21–24; 8:45 am]
BILLING CODE 6712–01–P
GENERAL SERVICES
ADMINISTRATION
48 CFR Parts 538 and 552
[GSAR Case 2020–G511; Docket No. GSA–
GSAR–2023–0019; Sequence No. 1]
RIN 3090–AK21
General Services Administration
Acquisition Regulation; Updated
Guidance for Non-Federal Entities
Access to Federal Supply Schedules
Office of Acquisition Policy,
General Services Administration (GSA).
ACTION: Final rule.
AGENCY:
GSA is issuing this final rule
amending the General Services
Administration Acquisition Regulation
(GSAR) to update and clarify the
requirements for use of Federal Supply
Schedule (FSS) contracts by eligible
non-Federal entities, such as State and
local governments.
DATES: Effective March 25, 2024.
FOR FURTHER INFORMATION CONTACT: For
clarification of content, contact Mr.
Thomas O’Linn, Procurement Analyst,
at gsarpolicy@gsa.gov or 202–445–0390.
For information pertaining to status or
publication schedules, contact the
SUMMARY:
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Regulatory Secretariat Division at
GSARegSec@gsa.gov or 202–501–4755.
Please cite GSAR Case 2020–G511.
SUPPLEMENTARY INFORMATION:
I. Background
This final rule amends the General
Services Administration Acquisition
Regulation (GSAR) to update and clarify
the requirements for use of Federal
Supply Schedule (FSS) contracts by
eligible non-Federal entities, such as
State and local governments. GSA
published a proposed rule at 88 FR
63892 on September 18, 2023.
GSA conducts routine reviews of its
acquisition regulations. Routine review
of the GSAR, as well as feedback from
GSA’s operational offices, prompted this
change. The review indicated a need to
update and clarify GSAR subpart
538.70, Purchasing by Non-Federal
Entities.
GSAR subpart 538.70 prescribes the
policies and procedures that implement
statutory, regulatory, and other
provisions that authorize eligible nonFederal entities (e.g., State or local
governments as defined in 40. U.S.C.
502(c)(3)) use of Federal Supply
Schedule (FSS) contracts.
The GSA Schedule, also known as
FSS, and 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 and other authorized
ordering activities.
This rule updates and clarifies GSAR
subpart 538.70, which supports use of
FSS contracts by eligible non-Federal
entities. This subpart is being revised to
make administrative changes due to
changes in some of the underlying
authorities supporting use of FSS
contracts by eligible non-Federal
entities. This rule also updates and
clarifies existing requirements
supporting use of FSS contracts by
eligible non-Federal entities, adds
additional key authorities that support
such use, and makes additional
technical corrections to enhance clarity
of existing requirements.
II. Discussion and Analysis
A. Analysis of Public Comments
GSA provided the public a 60-day
comment period (September 18, 2023, to
November 17, 2023). There were no
public comments submitted in response
to the proposed rule. Minor changes
were made from the proposed rule to
the final rule.
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B. Summary of Minor Changes
The following are the minor changes
made from the proposed rule to the final
rule:
1. Section 538.273 FSS solicitation
provisions and contract clauses. GSAR
clause 552.238–117, Price Adjustment—
Failure to Provide Accurate Information,
did not exist at the time of the proposed
rule (i.e., this clause went into effect
October 12, 2023, see 88 FR 62473,
September 12, 2023), thus was not
captured in the proposed rule
amendatory text. This GSAR clause is
currently prescribed in 538.273(d)(37).
The final rule includes the
redesignation of this clause from
paragraph (d)(37) to paragraph (d)(39).
This change ensures the clauses listed
in paragraph (d) of GSAR section
538.273 remain in numerical order.
2. Section 538.7001 Definitions. The
definition of Preparedness was revised
as follows: FROM ‘‘from disaster.’’ TO
‘‘from a disaster.’’ This change ensures
clarity of the intent of the requirement.
3. Section 538.7002–6 Indian SelfDetermination and Education
Assistance Act (ISDEAA) and section
552.238–113 Authorities Supporting
Use of Federal Supply Schedule
Contracts. The citation to 25 U.S.C. 5324
was revised to read as 25 U.S.C. 5324(k).
This change provides the proper citation
to the authority.
4. Section 538.7002–7 Native
American Housing Assistance and Self
Determination Act (NAHASDA) and
section 552.238–113 Authorities
Supporting Use of Federal Supply
Schedule Contracts. The citation to 25
U.S.C. 4111 was revised to read as 25
U.S.C. 4111(j). This change provides the
proper citation to the authority.
5. Section 552.238–113 Authorities
Supporting Use of Federal Supply
Schedule Contracts. Paragraph (a)(10) of
the clause was revised to read as: ‘‘(10)
40 U.S.C. 502(c), which provides for the
use by State or local governments, as
defined in 40 U.S.C. 502(c)(3)(A), for the
purpose of purchasing the types of
supplies and services described in 40
U.S.C. 502(c). The types of supplies and
services described in 40 U.S.C. 502(c)
are limited to those available in the
Information Technology Category and
the Security and Protection Category (or
any successor categories). The GSA
program implementing this authority is
the Cooperative Purchasing program.’’
This change integrates the text that was
originally identified as (a)(10)(i) into
paragraph (10), thereby eliminating the
need for paragraph (a)(10)(i). No
changes to the text were made.
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III. Expected Impact of the Rule
GSA believes that these changes
benefit the FSS program as a whole. For
example, these changes provide
visibility into the resources and
authorities available to eligible nonFederal entities who may be interested
in using FSS contracts. Additionally,
these changes clarify the requirements
for FSS contractors interested in doing
business with eligible non-Federal
entities under their FSS contract. These
changes do not alter the manner in
which the FSS contractors conduct
business, or the manner in which
eligible non-Federal entities may access
and use FSS contracts. The rule merely
updates and clarifies requirements
currently in use in the FSS program,
such as updating and clarifying existing
statutory, regulatory, and other
authorities that enable eligible nonFederal entities use of FSS contracts.
GSA assumes these changes will have a
positive impact on the FSS program as
a whole, including FSS contractors and
eligible non-Federal entities.
The qualitative anticipated benefits
include, but are not limited to, removal
of outdated and redundant information;
clarification of the requirements
supporting use of FSS contracts by
eligible non-Federal entities;
clarification of the authorities providing
use of FSS contracts by eligible nonFederal entities (e.g., adding the
authority provided by the Indian SelfDetermination and Education
Assistance Act that allows Tribal
organizations and Indian Tribes to use
FSS contracts under certain conditions);
identification of some of the programs
created for purpose of implementing
some of these authorities (e.g., GSA’s
Disaster Purchasing program which
implements 40 U.S.C. 502(d));
clarification on who is and who is not
considered eligible to use FSS contracts
(i.e., providing a definition for ‘eligible’
and ‘non-Federal entity’); and inclusion
of hyperlinks to resources that provide
additional information about eligibility
and use of FSS contracts (e.g., https://
www.gsa.gov/eligibilitydeterminations
includes a list that FSS contractors can
use to verify an entity’s eligibility).
Due to these benefits, GSA estimates
the following annual reduction in
burden due to the proposed
clarifications: GSA estimates it takes 3
hours for FSS contractors to familiarize
(read and understand the applicable
GSAR requirements of this proposed
rule) themselves with the regulations.
Therefore, for FSS contractors:
Prior to the revisions: the current
estimated total cost is 3 hours * $61.29
(GS–12 Step 5 base pay plus ‘‘Rest of US
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Locality Pay’’ plus ‘‘Fringe’’) * 13,000
approximate number of current FSS
contractors = $2,390,310.00.
After the revisions: the estimated total
cost is 2.5 hours * $61.29 (GS–12 Step
5 base pay plus ‘‘Rest of US Locality
Pay’’ plus ‘‘Fringe’’) * 13,000
approximate number of current FSS
contractors = $2,191,117.50.
Resulting in a reduction in burden of
$199,192.50.
IV. Executive Order 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. OIRA has
determined this rule is not a significant
regulatory action and, therefore, is not
subject to review under section 6(b) of
E.O. 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 a ‘‘major rule’’ under 5
U.S.C. 804(2).
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 this rule is to: (1) update and
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clarify existing requirements supporting
use of FSS contracts by eligible nonFederal entities; (2) clarify GSAR clause
requirements (e.g. rename clauses,
remove redundant or duplicative
information); (3) reflect changes based
on some of the underlying authorities
that provide eligible non-Federal
entities use of FSS contracts; (4) add
additional authorities that support such
use; and (5) include hyperlinks to
resources that provide information
about eligibility and use of FSS
contracts.
The purpose of the changed text
remains the same, and therefore any
burden would have been identified
previously. Additionally, participation
by both FSS contractors and eligible
non-Federal entities remains voluntary.
There were no comments submitted
and therefore no significant issues
raised by the public in response to the
Initial Regulatory Flexibility Analysis.
However, a Final Regulatory Flexibility
Analysis (FRFA) has been prepared
consistent with 5 U.S.C. 603. The
analysis is summarized as follows:
The objective of the rule is to revise GSAR
subpart 538.70 in its entirety in an effort to:
(1) update and clarify existing requirements
supporting use of FSS contracts by eligible
non-Federal entities; (2) clarify GSAR clause
requirements (e.g. rename clauses, remove
redundant or duplicative information); (3)
reflect changes based on some of the
underlying authorities that provide eligible
non-Federal entities use of FSS contracts; (4)
add additional authorities that support such
use; and (5) include hyperlinks to resources
that provide information about eligibility and
use of FSS contracts.
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 rule applies to both large and small
businesses, which are awarded FSS contracts
and decide to do business with eligible nonFederal entities who decide to use FSS
contracts (i.e., participation by all parties is
voluntary).
Information obtained from the FSS
program was used as the basis for estimating
the number of FSS contractors that the rule
may apply. For fiscal year 2022,
approximately 12,000 GSA FSS contractors
reported over $780 million in sales to eligible
non-Federal entities. Of the number of FSS
contractors that did business with eligible
non-Federal entities approximately 10,700
(89 percent) were small business FSS
contractors.
It is anticipated that these changes will
increase awareness of the authorities that
allow eligible non-Federal entities use of FSS
contracts as well as the resources available.
It is anticipated that these changes will
clarify the requirements for FSS contractors
choosing to do business with eligible non-
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Federal entities under their FSS contracts.
Altogether, GSA assumes these changes will
have a positive impact on the FSS program
as a whole, including FSS contractors and
eligible non-Federal entities.
The rule does not implement new or
change reporting, recordkeeping, or other
compliance requirements for FSS contracts.
The rule merely updates and clarifies
existing FSS requirements, such as updating
and clarifying existing statutory, regulatory,
and other authorities that enable eligible nonFederal entities use of FSS contracts. This
rule does not implement new or changed
requirements.
The rule does not duplicate, overlap, or
conflict with any other Federal rules.
There are no known alternatives to this
rule which would accomplish the stated
objectives. This rule does not initiate or
impose any new administrative or
performance requirements on small business
contractors because the policies and
procedures prescribed in existing FSS
clauses are already being followed. The rule
merely updates and clarifies existing
statutory, regulatory, and other authorities
related to the use of FSS contracts by nonFederal entities.
The Regulatory Secretariat 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 Paperwork Reduction Act does
not apply because the changes to the
GSAR do not impose recordkeeping or
information collection requirements, or
the collection of information from
offerors, contractors, or members of the
public that require the approval of the
Office of Management and Budget
(OMB) under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 538 and
532
Government procurement.
Jeffrey A. Koses,
Senior Procurement Executive, Office of
Acquisition Policy, Office of Governmentwide Policy, General Services Administration.
Therefore, GSA amends 48 CFR parts
538 and 552 as set forth below:
■ 1. The authority citation for 48 CFR
parts 538 and 552 continues to read as
follows:
Authority: 40 U.S.C. 121(c).
PART 538—FEDERAL SUPPLY
SCHEDULE CONTRACTING
2. Amend section 538.273 by—
a. Redesignating paragraphs (d)(36)
and (37) as paragraphs (d)(38) and (39);
and
■ b. Adding new paragraphs (d)(36) and
(37) to read as follows:
■
■
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538.273 FSS solicitation provisions and
contract clauses.
*
*
*
*
*
(d) * * *
(36) 552.238–112, Definitions—
Federal Supply Schedule Contracts.
(37) 552.238–113, Authorities
Supporting Use of Federal Supply
Schedule Contracts.
*
*
*
*
*
3. Revise subpart 538.70 to read as
follows:
■
Subpart 538.70—Use of Federal Supply
Schedule Contracts by Eligible Non-Federal
Entities
538.7000 Scope of subpart.
538.7001 Definitions.
538.7002 Authorities.
538.7002–1 Cooperative purchasing
program.
538.7002–2 Disaster purchasing program.
538.7002–3 Public health emergencies
program.
538.7002–4 Qualified nonprofit agencies for
the blind or other severely disabled.
538.7002.5 Qualified relief or disaster
assistance organizations.
538.7002–6 Indian Self-Determination and
Education Assistance Act (ISDEAA).
538.7002–7 Native American Housing
Assistance and Self Determination Act
(NAHASDA).
538.7002–8 Urban Indian organizations.
538.7002–9 Tribally controlled schools.
538.7002–10 1122 Program.
538.7003 Non-Federal entity requirements.
538.7004 GSA responsibilities.
538.7005 Contract clause.
Subpart 538.70—Use of Federal Supply
Schedule Contracts by Eligible NonFederal Entities
538.7000
Scope of subpart.
This subpart prescribes policies and
procedures for implementing statutory,
regulatory, and other authorities that
authorize use of Federal Supply
Schedule (FSS) contracts by eligible
non-Federal entities.
538.7001
Definitions.
As used in this subpart—
Eligible means an entity that meets the
requirements prescribed by statute,
regulation, or other authority for
purposes of being able to use FSS
contracts. Information about GSA’s FSS
eligibility process is available at https://
www.gsa.gov/eligibilitydeterminations.
Non-Federal entity means any State,
local, territorial, or Tribal government,
or any instrumentality thereof
(including any local educational agency
or institution of higher education); and
any other non-Federal organization (e.g.,
a qualified nonprofit agency as defined
in 40 U.S.C. 502(b)).
Preparedness means actions that may
include, but are not limited to:
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planning, resourcing, organizing,
equipping, training, and conducting
exercises to improve, build and sustain
the capabilities necessary to prevent,
protect, mitigate, respond, and recover
from a disaster.
Recovery means actions taken to assist
communities affected by an incident to
recover effectively. This includes, but is
not limited to, actions to restore,
redevelop, and revitalize the health,
social, economic, natural, and
environmental fabric of the community.
Recovery may begin while response is
still occurring.
Response means actions taken during
a disaster, or in its aftermath, in order
to save lives, protect property and the
environment, and meet basic human
needs. Response also includes the
execution of emergency plans and
actions to enable recovery from a
disaster.
538.7002
Authorities.
Various laws, regulations, and other
authorities allow eligible non-Federal
entities to use FSS contracts. This
section identifies some of the common
authorities allowing eligible nonFederal entities to use FSS contracts.
See https://www.gsa.gov/eligibility
determinations for additional
information about the authorities
available.
538.7002–1
program.
Cooperative purchasing
40 U.S.C. 502(c) allows State or local
governments, as defined in 40 U.S.C.
502(c)(3), to purchase the types of
supplies and services described in 40
U.S.C. 502(c). The supplies and services
described in 40 U.S.C. 502(c) are limited
to those available under the Information
Technology Category, and the Security
and Protection Category (or successor
category(ies)). The GSA program that
implements this authority is called the
Cooperative Purchasing program.
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538.7002–2
Disaster purchasing program.
(a) 40 U.S.C. 502(d) allows State or
local governments, as defined in 40.
U.S.C. 502(c)(3), to purchase supplies or
services that are to be used to
facilitate—
(1) Disaster preparedness or response;
(2) 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.); or
(3) Recovery from terrorism, nuclear,
biological, chemical, or radiological
attack.
(b) The GSA program that implements
this authority is called the Disaster
Purchasing program.
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538.7002–3
program.
Public health emergencies
42 U.S.C. 247d allows State or local
governments, as defined in 40 U.S.C.
502(c)(3), to purchase supplies and
services when expending Federal grant
funds in response to a public health
emergency declared by the Secretary of
Health and Human Services under
section 319 of the Public Health
Services Act. The GSA program that
implements this authority is called the
Public Health Emergencies program.
538.7002–4 Qualified nonprofit agencies
for the blind or other severely disabled.
40 U.S.C. 502(b) allows qualified
nonprofit agencies for the blind or other
severely disabled, as defined by 41
U.S.C. 8501, that are providing a
commodity or service to the
Government under 41 U.S.C. chapter 85,
to purchase supplies or services.
Purchases under this authority must be
used directly in making or providing to
the Government a commodity or service
that has been determined by the
Committee for Purchase From People
Who Are Blind or Severely Disabled
under 41 U.S.C. 8503 to be suitable for
procurement by the Government.
538.7002–5 Qualified relief or disaster
assistance organizations.
40 U.S.C. 502(e) allows the American
National Red Cross and other qualified
organizations, as defined in 40 U.S.C.
502(e)(3), to purchase supplies or
services. Purchases under this authority
by the American National Red Cross
shall be used in furtherance of the
purposes of the American National Red
Cross set forth in 36 U.S.C. 300102.
Purchases under this authority by other
qualified organizations shall be used in
furtherance of purposes 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.
538.7002–6 Indian Self-Determination and
Education Assistance Act (ISDEAA).
(a) 25 U.S.C. 5324(k) allows Tribal
organizations, as defined in 25 U.S.C.
5304, that have an active ISDEAA
contract, grant, or cooperative
agreement to purchase supplies or
services for the purposes of carrying out
the ISDEAA contract, grant, or
cooperative agreement.
(b) 25 U.S.C. 5370 allows Indian
Tribes, as defined in 25 U.S.C. 5304,
that have an active ISDEAA compact or
funding agreement to purchase supplies
or services for the purposes of carrying
the ISDEAA compact or funding
agreement.
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13285
(c) 25 U.S.C. 5396 allows Indian
Tribes, as defined in 25 U.S.C. 5304,
that have an active ISDEAA compact or
funding agreement to purchase supplies
or services for the purposes of carrying
out the ISDEAA compact or funding
agreement.
538.7002–7 Native American Housing
Assistance and Self Determination Act
(NAHASDA).
25 U.S.C 4111(j) allows Indian Tribes,
as defined in 25 U.S.C. 4103, and
tribally designated housing entities, as
defined in 25 U.S.C. 4103, that have an
active NAHASDA contract, grant, or
cooperative agreement to purchase
supplies and services for the purposes
of carrying out the NAHASDA contract,
grant, or cooperative agreement.
538.7002–8
Urban Indian organizations.
25 U.S.C. 1660g(e) allows Urban
Indian organizations, as defined in 25
U.S.C. 1603, that have an active contract
or grant pursuant to 25 U.S.C. chapter
18 subchapter IV to purchase supplies
and services for the purposes of carrying
out the contract or grant.
538.7002–9
Tribally controlled schools.
25 U.S.C. 2507(a)(6) allows tribally
controlled schools, as defined under 25
U.S.C. 2511, that have an active grant
pursuant to 25 U.S.C. chapter 27 to
purchase supplies or services for the
purposes of carrying out the grant.
538.7002–10
1122 Program.
10 U.S.C. 281 allows States and units
of local government, as defined in 10
U.S.C. 281, to purchase equipment
suitable for counter-drug, homeland
security, and emergency response
activities through the Department of
Defense. GSA, in coordination with the
Secretary of Defense, produces and
maintains a catalog in accordance with
the procedures established by the
Secretary of Defense. The catalog
includes access to equipment available
under FSS contracts. States and units of
local government interested in using the
1122 program should contact their
designated State point of contact.
538.7003
Non-Federal entity requirements.
Only non-Federal entities that are
eligible may use FSS contracts. Use of
FSS contracts by eligible non-Federal
entities is voluntary. The following
requirements apply to eligible nonFederal entities who decide to use FSS
contracts:
(a) FSS contractors are not obligated
to accept orders or enter into blanket
purchase agreements; however, they are
encouraged to do so.
(b) Purchases cannot be made for
personal use.
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(c) Purchases cannot be for resale,
unless specifically authorized.
(d) At a minimum, purchases shall
comply with—
(1) FSS ordering guidance.
Information about GSA’s FSS contracts,
including ordering guidance is available
at https://www.gsa.gov/schedules; and
(2) Any conditions of the underlying
authority(ies) supporting the use of FSS
contracts (e.g., 40 U.S.C. 502(c) limits
purchases to specific supplies and
services available under the FSS
program).
(e) An eligible non-Federal entity’s
eligibility cannot be transferred to a
third party (e.g., a subcontractor) or
successor entity.
538.7004
GSA responsibilities.
(a) Eligibility determination process.
GSA may need to make a determination
of eligibility to support a non-Federal
entity’s use of FSS contracts. See
https://www.gsa.gov/eligibility
determinations for information about
eligibility.
(b) Oversight. To ensure proper use of
and access to FSS contracts by eligible
non-Federal entities, GSA may take any
action within its authority as deemed
necessary to deny, limit, or restrict use
of FSS contracts, in whole or in part.
Reasons may include, but are not
limited to—
(1) A change in an underlying
authority;
(2) A change in the terms and
conditions of the FSS program or FSS
contracts;
(3) A failure by an eligible nonFederal entity to comply with the
requirements of 538.7003; or
(4) Use by an ineligible non-Federal
entity.
538.7005
Contract clause.
Insert the clause at 552.238–114, Use
of Federal Supply Schedule Contracts
by Eligible Non-Federal Entities, in FSS
solicitations and contracts.
PART 552—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
4. Amend section 552.238–105 by
revising the date of the clause and the
first sentence to read as follows:
■
lotter on DSK11XQN23PROD with RULES1
552.238–105 Deliveries Beyond the
Contractual Period—Placing of Orders.
*
*
*
*
*
Deliveries Beyond the Contractual Period—
Placing of Orders (Mar 2024)
In accordance with the GSAR clause at
552.238–113, Authorities Supporting Use of
Federal Supply Schedule Contracts, this
contract covers all requirements that may be
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15:55 Feb 21, 2024
Jkt 262001
ordered, as distinguished from delivered
during the contract term. * * *
5. Revise 552.238–112 through
552.238–114 to read as follows:
*
*
*
*
*
■
552.238–112 Definitions—Federal Supply
Schedule Contracts.
552.238–113 Authorities Supporting Use of
Federal Supply Schedule Contracts.
552.238–114 Use of Federal Supply
Schedule Contracts by Eligible NonFederal Entities.
*
*
*
*
*
552.238–112 Definitions—Federal Supply
Schedule Contracts.
As prescribed in 538.273(d) insert the
following clause:
Definitions-Federal Supply Schedule
Contracts (Mar 2024)
As used in this contract,
Eligible means an entity that meets the
requirements prescribed by statute,
regulation, or other authority for purposes of
being able to use Federal Supply Schedule
(FSS) contracts. Information about FSS
eligibility is available at https://www.gsa.gov/
eligibilitydeterminations.
Ordering activity (also called ‘‘ordering
agency’’ and ‘‘ordering office’’) means an
entity that is eligible to place orders or
establish blanket purchase agreements (BPA)
under this contract.
(End of clause)
552.238–113 Authorities Supporting Use
of Federal Supply Schedule Contracts.
As prescribed in 538.273(d), insert the
following clause:
Authorities Supporting Use of Federal
Supply Schedule Contracts (Mar 2024)
(a) Ordering activities are able to use
Federal Supply Schedule (FSS) contracts
based upon a number of statutes, regulations,
and other authorities. Authorities allowing
ordering activities use of FSS contracts
include, but are not limited to:
(1) 25 U.S.C. 1660g(e), which provides for
the use by urban Indian organizations, as
defined in 25 U.S.C. 1603, for the purposes
of carrying out a contract or grant pursuant
to 25 U.S.C. chapter 18, subchapter IV.
(2) 25 U.S.C. 2507, which provides for the
use by tribally controlled schools, as defined
in 25 U.S.C. 2511, for the purposes of
carrying out a grant pursuant to 25 U.S.C.
chapter 27 (known as the Tribally Controlled
Schools Act).
(3) 25 U.S.C. 4111(j), which provides for
the use by Indian Tribes, as defined in 25
U.S.C. 4103, and tribally designated housing
entities, as defined in 25 U.S.C. 4103, for the
purposes of carrying out a contract, grant, or
cooperative agreement pursuant to 25 U.S.C.
chapter 43 (known as the Native American
Housing Assistance and Self Determination
Act (NAHASDA)).
(4) 25 U.S.C. 5324(k), which provides for
the use by Tribal organizations, as defined in
25 U.S.C 5304, for the purposes of carrying
out a contract, grant, or cooperative
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Fmt 4700
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agreement pursuant to 25 U.S.C. chapter 46
(known as the Indian Self-Determination and
Education Assistance Act (ISDEAA)).
(5) 25 U.S.C. 5370 and 25 U.S.C. 5396,
which provides for the use by Indian Tribes,
as defined in 25 U.S.C. 5304, for the purpose
of carrying out a compact or funding
agreement pursuant to 25 U.S.C. chapter 46
(known as ISDEAA).
(6) 40 U.S.C. 113(d), which provides for the
use by the Senate, the House of
Representatives, and the Architect of the
Capitol (including any building, activity, or
function under the direction of the Architect
of the Capitol).
(7) 40 U.S.C. 501, which provides for the
use by executive agencies as defined in 5
U.S.C. 105.
(8) 40 U.S.C. 502(a), which provides for the
use by Federal agencies as defined in 40
U.S.C. 102, the District of Columbia, and
mixed-ownership Government corporations
as defined in 31 U.S.C. 9101.
(9) 40 U.S.C. 502(b), which provides for the
use by qualified nonprofit agencies for other
severely disabled, as defined in 41 U.S.C.
8501(6), and qualified nonprofit agencies for
the blind, as defined in 41 U.S.C. 8501(7), for
the purposes of making or providing to the
Government a commodity or service that has
been determined by the Committee for
Purchase From People Who Are Blind or
Severely Disabled under 41 U.S.C. 8503 to be
suitable for procurement by the Government.
(10) 40 U.S.C. 502(c), which provides for
the use by State or local governments, as
defined in 40 U.S.C. 502(c)(3)(A), for the
purpose of purchasing the types of supplies
and services described in 40 U.S.C. 502(c).
The types of supplies and services described
in 40 U.S.C. 502(c) are limited to those
available in the Information Technology
Category and the Security and Protection
Category (or any successor categories). The
GSA program implementing this authority is
the Cooperative Purchasing program.
(11) 40 U.S.C. 502(d), which provides for
the use by State or local governments, as
defined in 40 U.S.C. 502(c)(3)(A), for the
purposes of facilitating disaster preparedness
or response, facilitating 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.), or facilitating recovery from
terrorism, nuclear, biological, chemical, or
radiological attack. The GSA program
implementing this authority is the Disaster
Purchasing program.
(12) 40 U.S.C. 502(e), which provides for
the use by the American National Red Cross
and other qualified organizations, as defined
in 40 U.S.C. 502(e)(3). Purchases under this
authority by the American National Red
Cross shall be used in furtherance of the
purposes of the American National Red Cross
set forth in 36 U.S.C. 300102. Purchases
under this authority by other qualified
organizations shall be used in furtherance of
purposes 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.
(13) 42 U.S.C. 247d, which provides for the
use by State or local governments, as defined
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in 40 U.S.C.502(c)(3)(A), when a public
health emergency has been declared by the
Secretary of Health and Human Services
under section 319 of the Public Health
Services Act. The GSA program
implementing this authority is the Public
Health Emergencies program.
(14) FAR subpart 51.1, which provides for
the use by contractors, including
subcontractors, when such use is authorized
pursuant to FAR subpart 51.1.
(b) [Reserved]
(End of clause)
552.238–114 Use of Federal Supply
Schedule Contracts by Eligible Non-Federal
Entities.
lotter on DSK11XQN23PROD with RULES1
As prescribed in 538.7005, insert the
following clause:
Use of Federal Supply Schedule Contracts by
Eligible Non-Federal Entities (Mar 2024)
(a) Definition—Non-Federal entity, as used
in this clause, means any State, local,
territorial, or Tribal government, or any
instrumentality thereof (including any local
educational agency or institution of higher
education); and any other non-Federal
organization (e.g., a qualified nonprofit
agency as defined in 40 U.S.C. 502(b)).
(b) Responsibilities. Eligible non-Federal
entities are responsible for complying with—
(1) FSS ordering guidance. Information
about GSA’s FSS contracts, including
ordering guidance is available at https://
www.gsa.gov/schedules; and
(2) Any conditions of the underlying
authority(ies) supporting the use of FSS
contracts (e.g., 40 U.S.C. 502(c) limits
purchases to specific supplies and services
available under FSS contracts).
(c) Acceptance. (1) The Contractor is
encouraged, but not obligated, to accept
orders from eligible non-Federal entities
under this contract. The Contractor may,
within 5 business days of receipt of an order,
reject an order from an eligible non-Federal
entity for any reason. However, purchase
card orders must be rejected within 24 hours
of receipt of the order. Failure to reject an
order within these timeframes shall
constitute acceptance.
(2) The Contractor is encouraged, but not
obligated, to enter into blanket purchase
agreements (BPAs) with eligible non-Federal
entities under the terms of this contract. The
Contractor should respond to any requests to
enter into a BPA within 5 business days of
receipt of the request.
(d) Conditions of acceptance. If the
Contractor accepts an order from or enters
into a BPA with an eligible non-Federal
entity under this contract, the following
conditions apply:
(1) For orders, a separate contract is formed
between the Contractor and the eligible nonFederal entity (herein ‘‘the parties’’). For
BPAs, a separate agreement is formed
between the parties.
(2) The resultant order or BPA shall
incorporate by reference all the terms and
conditions of this contract except for:
(i) FAR clause 52.233–1, Disputes, and
(ii) Paragraphs (d) Disputes, (h) Patent
indemnity, and (r) Compliance with laws
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15:55 Feb 21, 2024
Jkt 262001
unique to Government contracts, of GSAR
clause 552.212–4, Contract Terms and
Conditions—Commercial Products and
Commercial Services.
(3) The U.S. Government is not liable for
the performance or nonperformance of any
order or BPA entered into under this contract
by the parties. Disputes which cannot be
resolved by the parties 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, the parties are encouraged
to resolve disputes through alternative
dispute resolution.
(4) Neither party will look to, primarily or
in any secondary capacity, or file any claim
against the U.S. Government or any of its
agencies with respect to any failure of
performance by the other party.
(e) Additional terms and conditions. Terms
and conditions required by statute,
ordinance, regulation, or as otherwise
required by an eligible non-Federal entity
may be made a part of an order or a BPA to
the extent that these terms and conditions do
not conflict with the terms and conditions of
this contract. The Contractor should review
any such additional terms and conditions
prior to accepting an order or entering into
a BPA with an eligible non-Federal entity.
(f) Payment. (1) The Contractor is
responsible for obtaining all payments due to
the Contractor from the eligible non-Federal
entity under the terms and conditions of the
order or the BPA entered into under this
contract, without recourse to the U.S.
Government or any of its agencies that
awarded this contract or administer this
contract.
(2) If an eligible non-Federal entity is
subject to a State prompt payment law, the
terms and conditions of the applicable State
law apply to the orders placed under this
contract by such entities. If an eligible nonFederal entity is not subject to a State prompt
payment law, the terms and conditions of
paragraph (i) of the GSAR clause at 552.212–
4, apply to such entities in the same manner
as to Federal entities.
(g) Fee and sales reporting. The
requirements of the GSAR clause at 552.238–
80, Industrial Funding Fee and Sales
Reporting, apply to any sales to eligible nonFederal entities under this contract.
(End of clause)
[FR Doc. 2024–03605 Filed 2–21–24; 8:45 am]
BILLING CODE 6820–61–P
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13287
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 679
[Docket No. 230224–0053; RTID 0648–
XD654]
Fisheries of the Exclusive Economic
Zone Off Alaska; Pacific Cod by
Vessels Using Pot Gear in the Western
Regulatory Area of the Gulf of Alaska
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; closure.
AGENCY:
NMFS is prohibiting directed
fishing for Pacific cod by vessels using
pot gear in the Western Regulatory Area
of the Gulf of Alaska (GOA). This action
is necessary to prevent exceeding the A
season allowance of the 2024 total
allowable catch (TAC) of Pacific cod by
vessels using pot gear in the Western
Regulatory Area of the GOA.
DATES: Effective 1200 hours, Alaska
local time (A.l.t.), February 19, 2024,
through 1200 hours, A.l.t., June 10,
2024.
SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Adam Zaleski, 907–586–7228.
NMFS
manages the groundfish fishery in the
GOA exclusive economic zone
according to the Fishery Management
Plan for Groundfish of the Gulf of
Alaska (FMP) prepared by the North
Pacific Fishery Management Council
under authority of the MagnusonStevens Fishery Conservation and
Management Act (Magnuson-Stevens
Act). Regulations governing fishing by
U.S. vessels in accordance with the FMP
appear at subpart H of 50 CFR part 600
and 50 CFR part 679.
The A season allowance of the 2024
Pacific cod TAC apportioned to vessels
using pot gear in the Western Regulatory
Area of the GOA is 1,182 metric tons
(mt) as established by the final 2023 and
2024 harvest specifications for
groundfish in the GOA (88 FR 13238,
March 2, 2023) and inseason adjustment
(88 FR 88840, December 26, 2023).
In accordance with § 679.20(d)(1)(i),
the Regional Administrator has
determined that the A season allowance
of the 2024 Pacific cod TAC
apportioned to vessels using pot gear in
the Western Regulatory Area of the GOA
will soon be reached. Therefore, the
Regional Administrator is establishing a
directed fishing allowance of 1,175 mt
and is setting aside the remaining 7 mt
SUPPLEMENTARY INFORMATION:
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]]>Agencies
[Federal Register Volume 89, Number 36 (Thursday, February 22, 2024)]
[Rules and Regulations]
[Pages 13282-13287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-03605]
=======================================================================
-----------------------------------------------------------------------
GENERAL SERVICES ADMINISTRATION
48 CFR Parts 538 and 552
[GSAR Case 2020-G511; Docket No. GSA-GSAR-2023-0019; Sequence No. 1]
RIN 3090-AK21
General Services Administration Acquisition Regulation; Updated
Guidance for Non-Federal Entities Access to Federal Supply Schedules
AGENCY: Office of Acquisition Policy, General Services Administration
(GSA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: GSA is issuing this final rule amending the General Services
Administration Acquisition Regulation (GSAR) to update and clarify the
requirements for use of Federal Supply Schedule (FSS) contracts by
eligible non-Federal entities, such as State and local governments.
DATES: Effective March 25, 2024.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Mr. Thomas O'Linn, Procurement Analyst, at [email protected] or 202-
445-0390. For information pertaining to status or publication
schedules, contact the Regulatory Secretariat Division at
[email protected] or 202-501-4755. Please cite GSAR Case 2020-G511.
SUPPLEMENTARY INFORMATION:
I. Background
This final rule amends the General Services Administration
Acquisition Regulation (GSAR) to update and clarify the requirements
for use of Federal Supply Schedule (FSS) contracts by eligible non-
Federal entities, such as State and local governments. GSA published a
proposed rule at 88 FR 63892 on September 18, 2023.
GSA conducts routine reviews of its acquisition regulations.
Routine review of the GSAR, as well as feedback from GSA's operational
offices, prompted this change. The review indicated a need to update
and clarify GSAR subpart 538.70, Purchasing by Non-Federal Entities.
GSAR subpart 538.70 prescribes the policies and procedures that
implement statutory, regulatory, and other provisions that authorize
eligible non-Federal entities (e.g., State or local governments as
defined in 40. U.S.C. 502(c)(3)) use of Federal Supply Schedule (FSS)
contracts.
The GSA Schedule, also known as FSS, and 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 and other
authorized ordering activities.
This rule updates and clarifies GSAR subpart 538.70, which supports
use of FSS contracts by eligible non-Federal entities. This subpart is
being revised to make administrative changes due to changes in some of
the underlying authorities supporting use of FSS contracts by eligible
non-Federal entities. This rule also updates and clarifies existing
requirements supporting use of FSS contracts by eligible non-Federal
entities, adds additional key authorities that support such use, and
makes additional technical corrections to enhance clarity of existing
requirements.
II. Discussion and Analysis
A. Analysis of Public Comments
GSA provided the public a 60-day comment period (September 18,
2023, to November 17, 2023). There were no public comments submitted in
response to the proposed rule. Minor changes were made from the
proposed rule to the final rule.
[[Page 13283]]
B. Summary of Minor Changes
The following are the minor changes made from the proposed rule to
the final rule:
1. Section 538.273 FSS solicitation provisions and contract
clauses. GSAR clause 552.238-117, Price Adjustment--Failure to Provide
Accurate Information, did not exist at the time of the proposed rule
(i.e., this clause went into effect October 12, 2023, see 88 FR 62473,
September 12, 2023), thus was not captured in the proposed rule
amendatory text. This GSAR clause is currently prescribed in
538.273(d)(37). The final rule includes the redesignation of this
clause from paragraph (d)(37) to paragraph (d)(39). This change ensures
the clauses listed in paragraph (d) of GSAR section 538.273 remain in
numerical order.
2. Section 538.7001 Definitions. The definition of Preparedness was
revised as follows: FROM ``from disaster.'' TO ``from a disaster.''
This change ensures clarity of the intent of the requirement.
3. Section 538.7002-6 Indian Self-Determination and Education
Assistance Act (ISDEAA) and section 552.238-113 Authorities Supporting
Use of Federal Supply Schedule Contracts. The citation to 25 U.S.C.
5324 was revised to read as 25 U.S.C. 5324(k). This change provides the
proper citation to the authority.
4. Section 538.7002-7 Native American Housing Assistance and Self
Determination Act (NAHASDA) and section 552.238-113 Authorities
Supporting Use of Federal Supply Schedule Contracts. The citation to 25
U.S.C. 4111 was revised to read as 25 U.S.C. 4111(j). This change
provides the proper citation to the authority.
5. Section 552.238-113 Authorities Supporting Use of Federal Supply
Schedule Contracts. Paragraph (a)(10) of the clause was revised to read
as: ``(10) 40 U.S.C. 502(c), which provides for the use by State or
local governments, as defined in 40 U.S.C. 502(c)(3)(A), for the
purpose of purchasing the types of supplies and services described in
40 U.S.C. 502(c). The types of supplies and services described in 40
U.S.C. 502(c) are limited to those available in the Information
Technology Category and the Security and Protection Category (or any
successor categories). The GSA program implementing this authority is
the Cooperative Purchasing program.'' This change integrates the text
that was originally identified as (a)(10)(i) into paragraph (10),
thereby eliminating the need for paragraph (a)(10)(i). No changes to
the text were made.
III. Expected Impact of the Rule
GSA believes that these changes benefit the FSS program as a whole.
For example, these changes provide visibility into the resources and
authorities available to eligible non-Federal entities who may be
interested in using FSS contracts. Additionally, these changes clarify
the requirements for FSS contractors interested in doing business with
eligible non-Federal entities under their FSS contract. These changes
do not alter the manner in which the FSS contractors conduct business,
or the manner in which eligible non-Federal entities may access and use
FSS contracts. The rule merely updates and clarifies requirements
currently in use in the FSS program, such as updating and clarifying
existing statutory, regulatory, and other authorities that enable
eligible non-Federal entities use of FSS contracts. GSA assumes these
changes will have a positive impact on the FSS program as a whole,
including FSS contractors and eligible non-Federal entities.
The qualitative anticipated benefits include, but are not limited
to, removal of outdated and redundant information; clarification of the
requirements supporting use of FSS contracts by eligible non-Federal
entities; clarification of the authorities providing use of FSS
contracts by eligible non-Federal entities (e.g., adding the authority
provided by the Indian Self-Determination and Education Assistance Act
that allows Tribal organizations and Indian Tribes to use FSS contracts
under certain conditions); identification of some of the programs
created for purpose of implementing some of these authorities (e.g.,
GSA's Disaster Purchasing program which implements 40 U.S.C. 502(d));
clarification on who is and who is not considered eligible to use FSS
contracts (i.e., providing a definition for `eligible' and `non-Federal
entity'); and inclusion of hyperlinks to resources that provide
additional information about eligibility and use of FSS contracts
(e.g., https://www.gsa.gov/eligibilitydeterminations includes a list
that FSS contractors can use to verify an entity's eligibility).
Due to these benefits, GSA estimates the following annual reduction
in burden due to the proposed clarifications: GSA estimates it takes 3
hours for FSS contractors to familiarize (read and understand the
applicable GSAR requirements of this proposed rule) themselves with the
regulations. Therefore, for FSS contractors:
Prior to the revisions: the current estimated total cost is 3 hours
* $61.29 (GS-12 Step 5 base pay plus ``Rest of US Locality Pay'' plus
``Fringe'') * 13,000 approximate number of current FSS contractors =
$2,390,310.00.
After the revisions: the estimated total cost is 2.5 hours * $61.29
(GS-12 Step 5 base pay plus ``Rest of US Locality Pay'' plus
``Fringe'') * 13,000 approximate number of current FSS contractors =
$2,191,117.50.
Resulting in a reduction in burden of $199,192.50.
IV. Executive Order 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. OIRA has
determined this rule is not a significant regulatory action and,
therefore, is not subject to review under section 6(b) of E.O. 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 a ``major
rule'' under 5 U.S.C. 804(2).
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 this rule is
to: (1) update and
[[Page 13284]]
clarify existing requirements supporting use of FSS contracts by
eligible non-Federal entities; (2) clarify GSAR clause requirements
(e.g. rename clauses, remove redundant or duplicative information); (3)
reflect changes based on some of the underlying authorities that
provide eligible non-Federal entities use of FSS contracts; (4) add
additional authorities that support such use; and (5) include
hyperlinks to resources that provide information about eligibility and
use of FSS contracts.
The purpose of the changed text remains the same, and therefore any
burden would have been identified previously. Additionally,
participation by both FSS contractors and eligible non-Federal entities
remains voluntary.
There were no comments submitted and therefore no significant
issues raised by the public in response to the Initial Regulatory
Flexibility Analysis. However, a Final Regulatory Flexibility Analysis
(FRFA) has been prepared consistent with 5 U.S.C. 603. The analysis is
summarized as follows:
The objective of the rule is to revise GSAR subpart 538.70 in
its entirety in an effort to: (1) update and clarify existing
requirements supporting use of FSS contracts by eligible non-Federal
entities; (2) clarify GSAR clause requirements (e.g. rename clauses,
remove redundant or duplicative information); (3) reflect changes
based on some of the underlying authorities that provide eligible
non-Federal entities use of FSS contracts; (4) add additional
authorities that support such use; and (5) include hyperlinks to
resources that provide information about eligibility and use of FSS
contracts.
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 rule applies to both large and small businesses, which are
awarded FSS contracts and decide to do business with eligible non-
Federal entities who decide to use FSS contracts (i.e.,
participation by all parties is voluntary).
Information obtained from the FSS program was used as the basis
for estimating the number of FSS contractors that the rule may
apply. For fiscal year 2022, approximately 12,000 GSA FSS
contractors reported over $780 million in sales to eligible non-
Federal entities. Of the number of FSS contractors that did business
with eligible non-Federal entities approximately 10,700 (89 percent)
were small business FSS contractors.
It is anticipated that these changes will increase awareness of
the authorities that allow eligible non-Federal entities use of FSS
contracts as well as the resources available. It is anticipated that
these changes will clarify the requirements for FSS contractors
choosing to do business with eligible non-Federal entities under
their FSS contracts. Altogether, GSA assumes these changes will have
a positive impact on the FSS program as a whole, including FSS
contractors and eligible non-Federal entities.
The rule does not implement new or change reporting,
recordkeeping, or other compliance requirements for FSS contracts.
The rule merely updates and clarifies existing FSS requirements,
such as updating and clarifying existing statutory, regulatory, and
other authorities that enable eligible non-Federal entities use of
FSS contracts. This rule does not implement new or changed
requirements.
The rule does not duplicate, overlap, or conflict with any other
Federal rules.
There are no known alternatives to this rule which would
accomplish the stated objectives. This rule does not initiate or
impose any new administrative or performance requirements on small
business contractors because the policies and procedures prescribed
in existing FSS clauses are already being followed. The rule merely
updates and clarifies existing statutory, regulatory, and other
authorities related to the use of FSS contracts by non-Federal
entities.
The Regulatory Secretariat 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 Paperwork Reduction Act does not apply because the changes to
the GSAR do not impose recordkeeping or information collection
requirements, or the collection of information from offerors,
contractors, or members of the public that require the approval of the
Office of Management and Budget (OMB) under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 538 and 532
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 parts 538 and 552 as set forth below:
0
1. The authority citation for 48 CFR parts 538 and 552 continues to
read as follows:
Authority: 40 U.S.C. 121(c).
PART 538--FEDERAL SUPPLY SCHEDULE CONTRACTING
0
2. Amend section 538.273 by--
0
a. Redesignating paragraphs (d)(36) and (37) as paragraphs (d)(38) and
(39); and
0
b. Adding new paragraphs (d)(36) and (37) to read as follows:
538.273 FSS solicitation provisions and contract clauses.
* * * * *
(d) * * *
(36) 552.238-112, Definitions--Federal Supply Schedule Contracts.
(37) 552.238-113, Authorities Supporting Use of Federal Supply
Schedule Contracts.
* * * * *
0
3. Revise subpart 538.70 to read as follows:
Subpart 538.70--Use of Federal Supply Schedule Contracts by Eligible
Non-Federal Entities
538.7000 Scope of subpart.
538.7001 Definitions.
538.7002 Authorities.
538.7002-1 Cooperative purchasing program.
538.7002-2 Disaster purchasing program.
538.7002-3 Public health emergencies program.
538.7002-4 Qualified nonprofit agencies for the blind or other
severely disabled.
538.7002.5 Qualified relief or disaster assistance organizations.
538.7002-6 Indian Self-Determination and Education Assistance Act
(ISDEAA).
538.7002-7 Native American Housing Assistance and Self Determination
Act (NAHASDA).
538.7002-8 Urban Indian organizations.
538.7002-9 Tribally controlled schools.
538.7002-10 1122 Program.
538.7003 Non-Federal entity requirements.
538.7004 GSA responsibilities.
538.7005 Contract clause.
Subpart 538.70--Use of Federal Supply Schedule Contracts by
Eligible Non-Federal Entities
538.7000 Scope of subpart.
This subpart prescribes policies and procedures for implementing
statutory, regulatory, and other authorities that authorize use of
Federal Supply Schedule (FSS) contracts by eligible non-Federal
entities.
538.7001 Definitions.
As used in this subpart--
Eligible means an entity that meets the requirements prescribed by
statute, regulation, or other authority for purposes of being able to
use FSS contracts. Information about GSA's FSS eligibility process is
available at https://www.gsa.gov/eligibilitydeterminations.
Non-Federal entity means any State, local, territorial, or Tribal
government, or any instrumentality thereof (including any local
educational agency or institution of higher education); and any other
non-Federal organization (e.g., a qualified nonprofit agency as defined
in 40 U.S.C. 502(b)).
Preparedness means actions that may include, but are not limited
to:
[[Page 13285]]
planning, resourcing, organizing, equipping, training, and conducting
exercises to improve, build and sustain the capabilities necessary to
prevent, protect, mitigate, respond, and recover from a disaster.
Recovery means actions taken to assist communities affected by an
incident to recover effectively. This includes, but is not limited to,
actions to restore, redevelop, and revitalize the health, social,
economic, natural, and environmental fabric of the community. Recovery
may begin while response is still occurring.
Response means actions taken during a disaster, or in its
aftermath, in order to save lives, protect property and the
environment, and meet basic human needs. Response also includes the
execution of emergency plans and actions to enable recovery from a
disaster.
538.7002 Authorities.
Various laws, regulations, and other authorities allow eligible
non-Federal entities to use FSS contracts. This section identifies some
of the common authorities allowing eligible non-Federal entities to use
FSS contracts. See https://www.gsa.gov/eligibilitydeterminations for
additional information about the authorities available.
538.7002-1 Cooperative purchasing program.
40 U.S.C. 502(c) allows State or local governments, as defined in
40 U.S.C. 502(c)(3), to purchase the types of supplies and services
described in 40 U.S.C. 502(c). The supplies and services described in
40 U.S.C. 502(c) are limited to those available under the Information
Technology Category, and the Security and Protection Category (or
successor category(ies)). The GSA program that implements this
authority is called the Cooperative Purchasing program.
538.7002-2 Disaster purchasing program.
(a) 40 U.S.C. 502(d) allows State or local governments, as defined
in 40. U.S.C. 502(c)(3), to purchase supplies or services that are to
be used to facilitate--
(1) Disaster preparedness or response;
(2) 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.); or
(3) Recovery from terrorism, nuclear, biological, chemical, or
radiological attack.
(b) The GSA program that implements this authority is called the
Disaster Purchasing program.
538.7002-3 Public health emergencies program.
42 U.S.C. 247d allows State or local governments, as defined in 40
U.S.C. 502(c)(3), to purchase supplies and services when expending
Federal grant funds in response to a public health emergency declared
by the Secretary of Health and Human Services under section 319 of the
Public Health Services Act. The GSA program that implements this
authority is called the Public Health Emergencies program.
538.7002-4 Qualified nonprofit agencies for the blind or other
severely disabled.
40 U.S.C. 502(b) allows qualified nonprofit agencies for the blind
or other severely disabled, as defined by 41 U.S.C. 8501, that are
providing a commodity or service to the Government under 41 U.S.C.
chapter 85, to purchase supplies or services. Purchases under this
authority must be used directly in making or providing to the
Government a commodity or service that has been determined by the
Committee for Purchase From People Who Are Blind or Severely Disabled
under 41 U.S.C. 8503 to be suitable for procurement by the Government.
538.7002-5 Qualified relief or disaster assistance organizations.
40 U.S.C. 502(e) allows the American National Red Cross and other
qualified organizations, as defined in 40 U.S.C. 502(e)(3), to purchase
supplies or services. Purchases under this authority by the American
National Red Cross shall be used in furtherance of the purposes of the
American National Red Cross set forth in 36 U.S.C. 300102. Purchases
under this authority by other qualified organizations shall be used in
furtherance of purposes 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.
538.7002-6 Indian Self-Determination and Education Assistance Act
(ISDEAA).
(a) 25 U.S.C. 5324(k) allows Tribal organizations, as defined in 25
U.S.C. 5304, that have an active ISDEAA contract, grant, or cooperative
agreement to purchase supplies or services for the purposes of carrying
out the ISDEAA contract, grant, or cooperative agreement.
(b) 25 U.S.C. 5370 allows Indian Tribes, as defined in 25 U.S.C.
5304, that have an active ISDEAA compact or funding agreement to
purchase supplies or services for the purposes of carrying the ISDEAA
compact or funding agreement.
(c) 25 U.S.C. 5396 allows Indian Tribes, as defined in 25 U.S.C.
5304, that have an active ISDEAA compact or funding agreement to
purchase supplies or services for the purposes of carrying out the
ISDEAA compact or funding agreement.
538.7002-7 Native American Housing Assistance and Self Determination
Act (NAHASDA).
25 U.S.C 4111(j) allows Indian Tribes, as defined in 25 U.S.C.
4103, and tribally designated housing entities, as defined in 25 U.S.C.
4103, that have an active NAHASDA contract, grant, or cooperative
agreement to purchase supplies and services for the purposes of
carrying out the NAHASDA contract, grant, or cooperative agreement.
538.7002-8 Urban Indian organizations.
25 U.S.C. 1660g(e) allows Urban Indian organizations, as defined in
25 U.S.C. 1603, that have an active contract or grant pursuant to 25
U.S.C. chapter 18 subchapter IV to purchase supplies and services for
the purposes of carrying out the contract or grant.
538.7002-9 Tribally controlled schools.
25 U.S.C. 2507(a)(6) allows tribally controlled schools, as defined
under 25 U.S.C. 2511, that have an active grant pursuant to 25 U.S.C.
chapter 27 to purchase supplies or services for the purposes of
carrying out the grant.
538.7002-10 1122 Program.
10 U.S.C. 281 allows States and units of local government, as
defined in 10 U.S.C. 281, to purchase equipment suitable for counter-
drug, homeland security, and emergency response activities through the
Department of Defense. GSA, in coordination with the Secretary of
Defense, produces and maintains a catalog in accordance with the
procedures established by the Secretary of Defense. The catalog
includes access to equipment available under FSS contracts. States and
units of local government interested in using the 1122 program should
contact their designated State point of contact.
538.7003 Non-Federal entity requirements.
Only non-Federal entities that are eligible may use FSS contracts.
Use of FSS contracts by eligible non-Federal entities is voluntary. The
following requirements apply to eligible non-Federal entities who
decide to use FSS contracts:
(a) FSS contractors are not obligated to accept orders or enter
into blanket purchase agreements; however, they are encouraged to do
so.
(b) Purchases cannot be made for personal use.
[[Page 13286]]
(c) Purchases cannot be for resale, unless specifically authorized.
(d) At a minimum, purchases shall comply with--
(1) FSS ordering guidance. Information about GSA's FSS contracts,
including ordering guidance is available at https://www.gsa.gov/schedules; and
(2) Any conditions of the underlying authority(ies) supporting the
use of FSS contracts (e.g., 40 U.S.C. 502(c) limits purchases to
specific supplies and services available under the FSS program).
(e) An eligible non-Federal entity's eligibility cannot be
transferred to a third party (e.g., a subcontractor) or successor
entity.
538.7004 GSA responsibilities.
(a) Eligibility determination process. GSA may need to make a
determination of eligibility to support a non-Federal entity's use of
FSS contracts. See https://www.gsa.gov/eligibilitydeterminations for
information about eligibility.
(b) Oversight. To ensure proper use of and access to FSS contracts
by eligible non-Federal entities, GSA may take any action within its
authority as deemed necessary to deny, limit, or restrict use of FSS
contracts, in whole or in part. Reasons may include, but are not
limited to--
(1) A change in an underlying authority;
(2) A change in the terms and conditions of the FSS program or FSS
contracts;
(3) A failure by an eligible non-Federal entity to comply with the
requirements of 538.7003; or
(4) Use by an ineligible non-Federal entity.
538.7005 Contract clause.
Insert the clause at 552.238-114, Use of Federal Supply Schedule
Contracts by Eligible Non-Federal Entities, in FSS solicitations and
contracts.
PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
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4. Amend section 552.238-105 by revising the date of the clause and the
first sentence to read as follows:
552.238-105 Deliveries Beyond the Contractual Period--Placing of
Orders.
* * * * *
Deliveries Beyond the Contractual Period--Placing of Orders (Mar 2024)
In accordance with the GSAR clause at 552.238-113, Authorities
Supporting Use of Federal Supply Schedule Contracts, this contract
covers all requirements that may be ordered, as distinguished from
delivered during the contract term. * * *
0
5. Revise 552.238-112 through 552.238-114 to read as follows:
* * * * *
552.238-112 Definitions--Federal Supply Schedule Contracts.
552.238-113 Authorities Supporting Use of Federal Supply Schedule
Contracts.
552.238-114 Use of Federal Supply Schedule Contracts by Eligible
Non-Federal Entities.
* * * * *
552.238-112 Definitions--Federal Supply Schedule Contracts.
As prescribed in 538.273(d) insert the following clause:
Definitions-Federal Supply Schedule Contracts (Mar 2024)
As used in this contract,
Eligible means an entity that meets the requirements prescribed
by statute, regulation, or other authority for purposes of being
able to use Federal Supply Schedule (FSS) contracts. Information
about FSS eligibility is available at https://www.gsa.gov/eligibilitydeterminations.
Ordering activity (also called ``ordering agency'' and
``ordering office'') means an entity that is eligible to place
orders or establish blanket purchase agreements (BPA) under this
contract.
(End of clause)
552.238-113 Authorities Supporting Use of Federal Supply Schedule
Contracts.
As prescribed in 538.273(d), insert the following clause:
Authorities Supporting Use of Federal Supply Schedule Contracts (Mar
2024)
(a) Ordering activities are able to use Federal Supply Schedule
(FSS) contracts based upon a number of statutes, regulations, and
other authorities. Authorities allowing ordering activities use of
FSS contracts include, but are not limited to:
(1) 25 U.S.C. 1660g(e), which provides for the use by urban
Indian organizations, as defined in 25 U.S.C. 1603, for the purposes
of carrying out a contract or grant pursuant to 25 U.S.C. chapter
18, subchapter IV.
(2) 25 U.S.C. 2507, which provides for the use by tribally
controlled schools, as defined in 25 U.S.C. 2511, for the purposes
of carrying out a grant pursuant to 25 U.S.C. chapter 27 (known as
the Tribally Controlled Schools Act).
(3) 25 U.S.C. 4111(j), which provides for the use by Indian
Tribes, as defined in 25 U.S.C. 4103, and tribally designated
housing entities, as defined in 25 U.S.C. 4103, for the purposes of
carrying out a contract, grant, or cooperative agreement pursuant to
25 U.S.C. chapter 43 (known as the Native American Housing
Assistance and Self Determination Act (NAHASDA)).
(4) 25 U.S.C. 5324(k), which provides for the use by Tribal
organizations, as defined in 25 U.S.C 5304, for the purposes of
carrying out a contract, grant, or cooperative agreement pursuant to
25 U.S.C. chapter 46 (known as the Indian Self-Determination and
Education Assistance Act (ISDEAA)).
(5) 25 U.S.C. 5370 and 25 U.S.C. 5396, which provides for the
use by Indian Tribes, as defined in 25 U.S.C. 5304, for the purpose
of carrying out a compact or funding agreement pursuant to 25 U.S.C.
chapter 46 (known as ISDEAA).
(6) 40 U.S.C. 113(d), which provides for the use by the Senate,
the House of Representatives, and the Architect of the Capitol
(including any building, activity, or function under the direction
of the Architect of the Capitol).
(7) 40 U.S.C. 501, which provides for the use by executive
agencies as defined in 5 U.S.C. 105.
(8) 40 U.S.C. 502(a), which provides for the use by Federal
agencies as defined in 40 U.S.C. 102, the District of Columbia, and
mixed-ownership Government corporations as defined in 31 U.S.C.
9101.
(9) 40 U.S.C. 502(b), which provides for the use by qualified
nonprofit agencies for other severely disabled, as defined in 41
U.S.C. 8501(6), and qualified nonprofit agencies for the blind, as
defined in 41 U.S.C. 8501(7), for the purposes of making or
providing to the Government a commodity or service that has been
determined by the Committee for Purchase From People Who Are Blind
or Severely Disabled under 41 U.S.C. 8503 to be suitable for
procurement by the Government.
(10) 40 U.S.C. 502(c), which provides for the use by State or
local governments, as defined in 40 U.S.C. 502(c)(3)(A), for the
purpose of purchasing the types of supplies and services described
in 40 U.S.C. 502(c). The types of supplies and services described in
40 U.S.C. 502(c) are limited to those available in the Information
Technology Category and the Security and Protection Category (or any
successor categories). The GSA program implementing this authority
is the Cooperative Purchasing program.
(11) 40 U.S.C. 502(d), which provides for the use by State or
local governments, as defined in 40 U.S.C. 502(c)(3)(A), for the
purposes of facilitating disaster preparedness or response,
facilitating 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.), or facilitating recovery
from terrorism, nuclear, biological, chemical, or radiological
attack. The GSA program implementing this authority is the Disaster
Purchasing program.
(12) 40 U.S.C. 502(e), which provides for the use by the
American National Red Cross and other qualified organizations, as
defined in 40 U.S.C. 502(e)(3). Purchases under this authority by
the American National Red Cross shall be used in furtherance of the
purposes of the American National Red Cross set forth in 36 U.S.C.
300102. Purchases under this authority by other qualified
organizations shall be used in furtherance of purposes 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.
(13) 42 U.S.C. 247d, which provides for the use by State or
local governments, as defined
[[Page 13287]]
in 40 U.S.C.502(c)(3)(A), when a public health emergency has been
declared by the Secretary of Health and Human Services under section
319 of the Public Health Services Act. The GSA program implementing
this authority is the Public Health Emergencies program.
(14) FAR subpart 51.1, which provides for the use by
contractors, including subcontractors, when such use is authorized
pursuant to FAR subpart 51.1.
(b) [Reserved]
(End of clause)
552.238-114 Use of Federal Supply Schedule Contracts by Eligible Non-
Federal Entities.
As prescribed in 538.7005, insert the following clause:
Use of Federal Supply Schedule Contracts by Eligible Non-Federal
Entities (Mar 2024)
(a) Definition--Non-Federal entity, as used in this clause,
means any State, local, territorial, or Tribal government, or any
instrumentality thereof (including any local educational agency or
institution of higher education); and any other non-Federal
organization (e.g., a qualified nonprofit agency as defined in 40
U.S.C. 502(b)).
(b) Responsibilities. Eligible non-Federal entities are
responsible for complying with--
(1) FSS ordering guidance. Information about GSA's FSS
contracts, including ordering guidance is available at https://www.gsa.gov/schedules; and
(2) Any conditions of the underlying authority(ies) supporting
the use of FSS contracts (e.g., 40 U.S.C. 502(c) limits purchases to
specific supplies and services available under FSS contracts).
(c) Acceptance. (1) The Contractor is encouraged, but not
obligated, to accept orders from eligible non-Federal entities under
this contract. The Contractor may, within 5 business days of receipt
of an order, reject an order from an eligible non-Federal entity for
any reason. However, purchase card orders must be rejected within 24
hours of receipt of the order. Failure to reject an order within
these timeframes shall constitute acceptance.
(2) The Contractor is encouraged, but not obligated, to enter
into blanket purchase agreements (BPAs) with eligible non-Federal
entities under the terms of this contract. The Contractor should
respond to any requests to enter into a BPA within 5 business days
of receipt of the request.
(d) Conditions of acceptance. If the Contractor accepts an order
from or enters into a BPA with an eligible non-Federal entity under
this contract, the following conditions apply:
(1) For orders, a separate contract is formed between the
Contractor and the eligible non-Federal entity (herein ``the
parties''). For BPAs, a separate agreement is formed between the
parties.
(2) The resultant order or BPA shall incorporate by reference
all the terms and conditions of this contract except for:
(i) FAR clause 52.233-1, Disputes, and
(ii) Paragraphs (d) Disputes, (h) Patent indemnity, and (r)
Compliance with laws unique to Government contracts, of GSAR clause
552.212-4, Contract Terms and Conditions--Commercial Products and
Commercial Services.
(3) The U.S. Government is not liable for the performance or
nonperformance of any order or BPA entered into under this contract
by the parties. Disputes which cannot be resolved by the parties 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, the parties are encouraged to
resolve disputes through alternative dispute resolution.
(4) Neither party will look to, primarily or in any secondary
capacity, or file any claim against the U.S. Government or any of
its agencies with respect to any failure of performance by the other
party.
(e) Additional terms and conditions. Terms and conditions
required by statute, ordinance, regulation, or as otherwise required
by an eligible non-Federal entity may be made a part of an order or
a BPA to the extent that these terms and conditions do not conflict
with the terms and conditions of this contract. The Contractor
should review any such additional terms and conditions prior to
accepting an order or entering into a BPA with an eligible non-
Federal entity.
(f) Payment. (1) The Contractor is responsible for obtaining all
payments due to the Contractor from the eligible non-Federal entity
under the terms and conditions of the order or the BPA entered into
under this contract, without recourse to the U.S. Government or any
of its agencies that awarded this contract or administer this
contract.
(2) If an eligible non-Federal entity is subject to a State
prompt payment law, the terms and conditions of the applicable State
law apply to the orders placed under this contract by such entities.
If an eligible non-Federal entity is not subject to a State prompt
payment law, the terms and conditions of paragraph (i) of the GSAR
clause at 552.212-4, apply to such entities in the same manner as to
Federal entities.
(g) Fee and sales reporting. The requirements of the GSAR clause
at 552.238-80, Industrial Funding Fee and Sales Reporting, apply to
any sales to eligible non-Federal entities under this contract.
(End of clause)
[FR Doc. 2024-03605 Filed 2-21-24; 8:45 am]
BILLING CODE 6820-61-P
