General Services Administration Acquisition Regulation; Federal Supply Schedule Economic Price Adjustment, 63325-63328 [2024-16980]
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Federal Register / Vol. 89, No. 150 / Monday, August 5, 2024 / Rules and Regulations
to provide, all appropriate technical
information, system requirements, and
justification for requested station
parameters when such information is
necessary to identify and recommend
the most appropriate frequency.
(b) In the 2025–2110 MHz band:
(1) Site-based local coordination. (i)
The space launch frequency coordinator
must initiate a post-grant coordination
request for site-specific coordination
with the local Broadcast Auxiliary
Service (BAS) frequency coordinator,
including the provision of all necessary
technical and operational parameters for
each space launch licensee, to protect
BAS, Cable Television Relay Service
(CARS), and Local Television
Transmission Service (LTTS)
operations, as well as Federal entities
that have completed coordination with
the BAS frequency coordinator.
(ii) The space launch frequency
coordinator is not required to initiate a
post-grant coordination request for sitespecific coordination with the local BAS
frequency coordinator if the Space
Launch Services licensee provides a
showing to the space launch frequency
coordinator that:
(A) It has previously coordinated its
proposed launch operations with the
appropriate local BAS frequency
coordinator and continues to comply
with any conditions or agreements
resulting from such prior coordination,
or that it has entered into applicable
coordination agreements with cofrequency entities;
(B) It has ascertained that its proposal
will not constrain, preclude, nor
interfere with incumbents in the band,
including BAS, CARS, and LTTS
licensees and previously coordinated
Federal operations; and
(C) It has demonstrated in a technical
showing that its proposed operation will
not create more than 0.5 dB increase in
the noise threshold of a receiver at a
fixed or temporary fixed electronic news
gathering (ENG) receive site.
(iii) Upon request, the space launch
frequency coordinator and/or the Space
Launch Services licensee must provide
any additional information requested by
the local BAS frequency coordinator
regarding a pending recommendation
that it has processed but has not yet
been granted.
(iv) It is the responsibility of the space
launch frequency coordinator to ensure
that its frequency recommendations do
not conflict with the frequency
recommendations of the local BAS
frequency coordinator. Should a conflict
arise, the affected coordinators are
jointly responsible for taking action to
resolve the conflict, up to and including
notifying the Commission and the
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National Telecommunications and
Information Administration (NTIA) that
a launch request must be denied.
(2) Per-launch coordination with
NTIA. (i) To protect Federal users in the
band, the space launch frequency
coordinator shall conduct a post-grant,
per-launch coordination with NTIA by
providing the Space Launch licensee’s
site and station registration with their
corresponding technical and operational
parameters to initiate the coordination
process for each proposed launch.
(ii) To assist NTIA’s review, the space
launch frequency coordinator may
provide a showing that the operational
and technical parameters of a proposed
launch are consistent with a prior
successful coordination and that the
space launch licensee continues to
comply with any conditions or
agreements resulting from such prior
coordination or that its proposed launch
is covered by an applicable coordination
agreement(s) with co-frequency entities.
(c) In the 2200–2290 MHz band:
(1) Per-launch coordination with
NTIA. (i) To protect Federal users in the
band, the space launch frequency
coordinator shall conduct a post-grant,
per-launch coordination with NTIA by
providing the Space Launch Services
licensee’s site and station registration
with their corresponding technical and
operational parameters to initiate the
coordination process for each proposed
launch.
(ii) To assist NTIA’s review, the space
launch frequency coordinator may
provide a showing that the operational
and technical parameters of a proposed
launch are consistent with a prior
successful coordination and that the
space launch licensee continues to
comply with any conditions or
agreements resulting from such prior
coordination or that its proposed launch
is covered by an applicable coordination
agreement(s) with co-frequency entities.
(2) [Reserved]
13. Delayed indefinitely, add § 26.301
to read as follows:
■
§ 26.301
Authorized bandwidth.
The Commission shall issue licenses
in the Space Launch Services with
bandwidths up to and including 5
megahertz, provided that the
Commission may issue licenses with a
maximum bandwidth exceeding 5
megahertz upon adequate justification
from a license applicant explaining why
the requested bandwidth is necessary
for specific space launch operations,
including an explanation of why the
applicant’s operations cannot be
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63325
satisfied using a bandwidth of 5
megahertz or less.
[FR Doc. 2024–16638 Filed 8–2–24; 8:45 am]
BILLING CODE 6712–01–P
GENERAL SERVICES
ADMINISTRATION
48 CFR Parts 501, 502, 538, and 552
[GSAR Case 2020–G510; Docket No. 2023–
0025; Sequence No. 1]
RIN 3090–AK20
General Services Administration
Acquisition Regulation; Federal Supply
Schedule Economic Price Adjustment
Office of Acquisition Policy,
General Services Administration (GSA).
ACTION: Final rule.
AGENCY:
The General Services
Administration is amending the General
Services Administration Acquisition
Regulations (GSAR) to standardize and
simplify the Multiple Award Schedule
clauses for economic price adjustments.
This rule removes certain economic
price adjustment requirements within
these clauses to better align with
commercial standards and practices.
DATES: This rule is effective on
September 4, 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
Regulatory Secretariat at GSARegSec@
gsa.gov or 202–501–4755. Please cite
GSAR Case 2020–G510.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
This final rule amends the (GSAR) to
standardize and simplify the Multiple
Award Schedule (Schedule) clauses for
economic price adjustments.
GSA published a proposed rule in the
Federal Register at 88 FR 78710 on
November 16, 2023. One respondent
submitted comments in response to the
proposed rule.
II. Discussion and Analysis
GSA reviewed the public comments
in the development of the final rule;
however, no changes were made as a
result of the public comments received.
A discussion of the public comments
received is provided as follows:
A. Summary of Significant Changes
There are no significant changes from
the proposed rule.
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B. Analysis of Public Comments
1. Support for the Rule
Comment: The respondent expressed
support for the rule.
Response: GSA acknowledges the
respondent’s support for the rule.
2. Training
Comment: The respondent
recommended contracting officers
receive training on processing Schedule
economic price adjustment (EPA)
requests.
Response: GSA acknowledges the
respondent’s recommendation and will
consider their recommendations as part
of the training plan for this rule. GSA
plans on reviewing and updating
existing Schedule EPA training
resources. GSA also intends to provide
training to the acquisition workforce,
including contracting officers.
3. Guidance
Comment: The respondent
recommended guidance be revised and,
if applicable, developed to support the
processing of Schedule EPA requests.
Response: GSA acknowledges the
respondent’s recommendation and will
consider their recommendations within
the update of Schedule EPA guidance.
GSA plans on updating existing
Schedule EPA guidance to support the
implementation of this rule. Guidance
will include direction to contracting
officers on how to properly process EPA
requests based on the type of EPA
mechanism (e.g., a fixed escalation rate
and market indicator) identified in the
contractor’s Schedule contract.
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C. Summary of Minor Changes
1. General. The final rule renumbers
the clause 552.238–118, Economic Price
Adjustment—Federal Supply Schedule
Contracts, to 552.238–120, Economic
Price Adjustment—Federal Supply
Schedule Contracts. The renumbering of
this clause ensures consistency with the
changes made to the GSAR that went
into effect July 8, 2024 (see 89 FR 48330,
June 6, 2024).
2. Section 501.106, OMB Approval
under the Paperwork Reduction Act.
The final rule revises the entry for
552.238–120 to include Office of
Management and Budget (OMB) Control
No. 3090–0306. The revision is
necessary to add all of the OMB
information collections tied to this
clause.
3. Section 502.101, Definitions. The
final rule revises the text for the
definition of ‘‘Economic price
adjustment (EPA) method’’ in order to
add a parenthesis in front of the period.
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4. Section 538.273, FSS solicitation
provisions and contract clauses. The
final rule includes the redesignation of
the clause 552.238–120, Economic Price
Adjustment—Federal Supply Schedule
Contracts, from paragraph (d)(38) to
paragraph (d)(41). This change ensures
the clauses listed in paragraph (d) of
GSAR 538.273 remain in numerical
order.
5. Section 538.273, FSS solicitation
provisions and contract clauses. The
final rule includes the removal of the
following ‘‘Use in Federal Supply
Schedule solicitations and contracts.’’
The removal of this text ensures
consistency with the changes made to
this section, which went into effect
February 12, 2024 (see 89 FR 2172,
January 12, 2024).
III. Expected Impact of the Rule
This rule will benefit the Schedule
program as a whole. For example, GSA
anticipates that these changes will
increase the number and extent of
offerings available through the Schedule
program, improve customer satisfaction/
reduce customer cost by ensuring
needed products, services, and solutions
are not removed from the Schedule
program due to market volatility, and
reduce administrative costs on Schedule
contractors, particularly small
businesses and new entrants.
GSA receives hundreds of
modification requests each month from
contractors to remove items from their
Schedule contracts or declined orders
due to price variability in the
commercial market. By statute, the
procedures for the Schedule program
are competitive so long as they are open
to all and contracts and orders result in
the lowest overall cost alternative. GSA
anticipates this rule will help it ensure
customers experience the lowest overall
cost alternative on their orders by
maximizing the chance that full
solutions are available on the Schedule
contract, thus minimizing the need to
conduct multiple separate acquisitions
to fulfill a requirement.
Currently, Schedule contracts
included at least one of the following
four clauses related to the submission
and processing of EPA requests during
contract performance: (1) an authorized
deviation to GSAR clause 552.216–70;
(2) Alternate I of GSAR clause 552.216–
70; (3) clause I–FSS–969; or (4) an
Alternate of clause I–FSS–969. This rule
standardizes and simplifies the EPA
requirements contained in these four
clauses. This rule consolidates these
four clauses into a single Schedule EPA
clause. These changes do not alter the
way Schedule contractors conduct
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business, or their ability to submit an
EPA request.
The qualitative anticipated benefits
include, but are not limited to, the
creation of a single standardized
Schedule EPA clause; greater flexibility
around EPA requests; providing clarity
around EPA within the Schedule
program; providing a connection
between the Schedule solicitation and
resultant contracts; and greater
flexibility and agility for purposes of
responding to changing conditions.
GSA anticipates the quantitative
benefits to be related to improved
regulatory familiarization. GSA
calculates the estimated total cost for
Schedule contractors to familiarize
themselves with existing EPA
requirements as $3,251,640 (i.e., 3 hours
* $77.42 1 (GS–12 Step 5 base pay plus
‘‘Rest of US Locality Pay’’ plus
‘‘Fringe’’) * 14,000 approximate number
of current Schedule contractors)). After
these revisions: GSA estimates the total
cost as $2,709,700 (i.e., 2.5 hours *
$77.42 (GS–12 Step 5 base pay plus
‘‘Rest of US Locality Pay’’ plus
‘‘Fringe’’) * 14,000 approximate number
of current Schedule contractors)).
Resulting in a reduction in estimated
total cost of $541,940.
IV. Executive Orders 12866, 13563, and
14094
Executive Order (E.O.) 12866
(Regulatory Planning and Review)
directs 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 (Improving
Regulation and Regulatory Review)
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) has
determined that 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.
1 2023 Rest of US, 12 Step 5 × 2.0 fringe = $77.42;
the rate is adjusted upward by 100% to adjust for
overhead and benefits.
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V. Congressional Review Act
OIRA has determined that this rule is
not a major rule under 5 U.S.C. 804(2).
Subtitle E of the Small Business
Regulatory Enforcement Fairness Act of
1996 (codified at 5 U.S.C. 801–808), also
known as the Congressional Review Act
or CRA, 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 under the CRA
cannot take effect until 60 days after it
is published in the Federal Register.
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VI. Regulatory Flexibility Act
GSA does not expect this final rule to
have a significant economic impact on
a substantial number of small entities
within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq.,
because this rule is to standardize and
simplify existing EPA requirements
related to Schedule (e.g., revise GSAR
clause 552.216–70, Economic Price
Adjustment-FSS Multiple Award
Schedule Contracts).
The underlying purpose of the
changed text remains the same (i.e.,
supporting the submission and
processing of EPA requests), and
therefore any burden would have been
identified previously.
There were no significant issues
raised by the public comments in
response to the initial regulatory
flexibility analysis. A Final Regulatory
Flexibility Analysis (FRFA) has been
prepared consistent with 5 U.S.C. 603 et
seq. The FRFA is summarized as
follows:
The objective of the rule is to standardize
and simplify the clauses for Schedules
related to EPA. These revisions consolidate
the four existing Schedule clauses into a
single Schedule EPA clause. These revisions
also remove certain procedural limits
contained in these clauses to better align
with commercial standards and practices.
GSA anticipates that these changes will
increase the number and extent of offerings
available through the Schedule program,
improve customer satisfaction/reduce
customer costs by ensuring needed products,
services, and solutions are not removed from
the Schedule program, and reduce
administrative costs on Schedule contractors,
particularly small businesses and new
entrants.
Title 40 of the United States Code (U.S.C.)
section 121 authorizes GSA to issue
regulations, including the GSAR, to control
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the relationship between GSA and
contractors. In addition, 41 U.S.C. 152
provides GSA authority over the Schedule
program.
The rule applies to both large and small
businesses, which are awarded Schedule
contracts. Information obtained from FAS as
well as the recent renewal of Information
Collections 3090–0235 and 3090–0306 were
used as the basis for estimating the number
of Schedule contractors that this rule may
impact. For Fiscal Year 2023 there were
approximately 14,000 Schedule contractors,
of which over 12,000 (85 percent) were small
business entities. In addition, according to
the recent renewal of Information Collections
3090–0235 and 3090–0306, GSA processes
approximately 2,561 EPA requests annually.
GSA anticipates this rule will not
significantly impact this number.
The rule does not implement new or
changed reporting, recordkeeping, or other
compliance requirements for Schedule
contracts. The rule merely updates and
clarifies existing EPA requirements currently
used in Schedule contracts.
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 requirements
prescribed in existing Schedule EPA clauses
are already being followed. The rule merely
updates and clarifies these existing
requirements so as to reduce burden for both
the government and contractors as it relates
to EPA within Schedule contracts.
Interested parties may obtain a copy
of the FRFA from the Regulatory
Secretariat Division. The Regulatory
Secretariat Division has submitted a
copy of the FRFA to the Chief Counsel
for Advocacy of the Small Business
Administration.
List of Subjects in 48 CFR Parts 501,
502, 538, and 552
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
501, 502, 538, and 552 as set forth
below:
■ 1. The authority citation for 48 CFR
parts 501, 502, 538, and 552 continues
to read as follows:
Authority: 40 U.S.C. 121(c).
PART 501—GENERAL SERVICES
ADMINISTRATION ACQUISITION
REGULATION SYSTEM
2. In section 501.106, amend table 1
by—
■ a. Revising the entry for ‘‘516.506’’;
■ b. Removing the entry for ‘‘552.216–
70’’; and
■ c. Adding, in numerical order, entries
for ‘‘552.238–83’’ and ‘‘552.238–120’’.
The revision and additions read as
follows:
■
501.106 OMB approval under the
Paperwork Reduction Act.
*
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*
*
*
TABLE 1 TO 501.106
GSAR reference
OMB control No.
*
*
516.506 ...............
*
*
*
3090–0248, 3090–0306
*
*
552.238–83 .........
*
*
*
3090–0235, 3090–0306
*
*
552.238–120 .......
*
*
*
3090–0235, 3090–0306
*
VII. Paperwork Reduction Act
The Paperwork Reduction Act (44
U.S.C. chapter 3501) does apply;
however, these changes do not impose
additional information collection
requirements to the burden previously
approved under OMB Control Number
3090–0235, titled: Federal Supply
Schedule Pricing Disclosures and Sales
Reporting and OMB Control Number
3090–0306, titled: Transactional Data
Reporting. Both OMB information
collections, however, will be updated to
reflect the change in the clause title and
number from 552.216–70, Economic
Price Adjustment—FSS Multiple Award
Schedule Contracts, to 552.238–120,
Economic Price Adjustment—Federal
Supply Schedule Contracts.
*
*
*
*
*
PART 502—DEFINITIONS OF WORDS
AND TERMS
3. Amend section 502.101 by adding,
in alphabetical order, the definition of
‘‘Economic price adjustment (EPA)
method’’ to read as follows:
■
502.101
Definitions.
*
*
*
*
*
Economic price adjustment (EPA)
method means the agreed upon
procedure by which pricing may be
adjusted throughout the contract period
to include, but not limited to, the
mechanism(s) to be used to adjust
pricing (e.g., adjustments based on
established pricing), the pricing subject
to adjustment, and any other
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requirements (e.g., timing, frequency,
limits on increases).
*
*
*
*
*
552.238–120 Economic Price
Adjustment—Federal Supply Schedule
Contracts (DATE)
PART 538—FEDERAL SUPPLY
SCHEDULE CONTRACTING
4. Amend section 538.273 by adding
paragraph (d)(41) to read as follows:
■
538.273 FSS solicitation provisions and
contract clauses.
*
*
*
*
*
(d) * * *
(41) 552.238–120, Economic Price
Adjustment—Federal Supply Schedule
Contracts.
*
*
*
*
*
PART 552—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
552.216–70
[Removed]
5. Remove section 552.216–70.
6. Amend section 552.238–115 by:
a. Revising the date of the clause;
b. Removing paragraph (d)(10)(i);
c. Redesignating paragraphs (d)(10)(ii)
and (iii) as paragraphs (d)(10)(i) and (ii);
and
■ d. Adding new paragraph (d)(10)(iii).
The revision and addition read as
follows:
■
■
■
■
■
552.238–115 Special Ordering Procedures
for the Acquisition of Order-Level Materials.
*
*
*
*
*
Special Ordering Procedures for the
Acquisition of Order-Level Materials
(DATE)
*
*
*
*
*
(d) * * *
(10) * * *
(iii) 552.238–120, Economic Price
Adjustment—Federal Supply Schedule
Contracts.
*
*
*
*
*
■ 7. Add section 552.238–120 to read as
follows:
552.238–120 Economic Price
Adjustment—Federal Supply Schedule
Contracts.
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As prescribed in 538.273(d), insert the
following clause:
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(a) Definition.
Economic price adjustment method,
as used in this clause, means the agreed
upon procedures by which pricing may
be adjusted throughout the contract
period to include, but not limited to, the
mechanism(s) to be used to adjust
pricing (e.g., adjustments based on
established pricing), the pricing subject
to adjustment, and any other
requirements (e.g., timing, frequency,
limits on increases).
(b) General. This contract provides for
economic price adjustment (EPA) to
contract pricing based on the
established EPA method. EPA provides
for the increase and decrease to stated
contract pricing upon the occurrence of
specified conditions described in the
EPA method, such as market index
changes or unforeseeable significant
changes in market conditions.
(c) Exceptions. This clause does not
cover—
(1) Adjustments based on statute,
Executive Order, or regulation (e.g.,
Service Contract Labor Standards (41
U.S.C. chapter 67) and AbilityOne
procurements (FAR subpart 8.7));
(2) Adjustments based on a change
clause (e.g., paragraph (c) of GSAR
clause 552.212–4, Contract Terms and
Conditions—Commercial Products and
Commercial Services (FAR DEVIATION
52.212–4));
(3) Price reductions made under
GSAR clause 552.238–81, Price
Reductions;
(4) Adjustments based on GSAR
clause 552.238–117, Price AdjustmentFailure to Provide Accurate Information;
and
(5) Adjustments based on a contract
clause that authorizes an adjustment
based on specified actions or
conditions.
(d) Economic price adjustment
method. The EPA method may be
revised through mutual agreement of the
parties. In the event of a conflict
between the EPA method and this
contract, the contract shall control.
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(e) Submission requirements. The
Contractor shall submit EPA requests to
the Federal Supply Schedule (FSS)
Contracting Officer pursuant to the EPA
method. EPA requests shall fully
conform to the requirements of the EPA
method and include sufficient
information to support the request. The
FSS Contracting Officer may request
additional information from the
Contractor.
(f) Contracting Officer responsibilities.
The FSS Contracting Officer will—
(1) Review the EPA request to ensure
conformance with the EPA method,
(2) Make a determination. The FSS
Contracting Officer may use any
information (e.g., market research)
deemed necessary to support their
determination. The FSS Contracting
Officer may determine to—
(i) Accept the EPA request either in
whole or in part,
(ii) Reject the EPA request either in
whole or in part, or
(iii) Take any other action deemed to
be in the best interest of the Government
(e.g., negotiate a more favorable EPA).
(3) Notify the Contractor of their
determination, and
(4) Modify the contract, as applicable,
to reflect the determination. Contract
items that need to be removed from the
contract as a result of rejection or an
inability to reach agreement are to be
removed in accordance with 552.238–
79, Cancellation.
(g) Effective date. EPA requests
approved by the FSS Contracting Officer
under this clause shall apply to orders
issued on or after the effective date of
the contract modification. Blanket
Purchase Agreements (BPAs) may be
modified by the ordering agency in
accordance with the terms and
conditions of the BPA.
(h) Update of contract pricing and
catalog data. The Contractor shall
update its FSS pricing and any other
FSS catalog data in accordance with the
terms and conditions of this contract.
(End of clause)
[FR Doc. 2024–16980 Filed 8–2–24; 8:45 am]
BILLING CODE 6820–61–P
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05AUR1
]]>Agencies
[Federal Register Volume 89, Number 150 (Monday, August 5, 2024)]
[Rules and Regulations]
[Pages 63325-63328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-16980]
=======================================================================
-----------------------------------------------------------------------
GENERAL SERVICES ADMINISTRATION
48 CFR Parts 501, 502, 538, and 552
[GSAR Case 2020-G510; Docket No. 2023-0025; Sequence No. 1]
RIN 3090-AK20
General Services Administration Acquisition Regulation; Federal
Supply Schedule Economic Price Adjustment
AGENCY: Office of Acquisition Policy, General Services Administration
(GSA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The General Services Administration is amending the General
Services Administration Acquisition Regulations (GSAR) to standardize
and simplify the Multiple Award Schedule clauses for economic price
adjustments. This rule removes certain economic price adjustment
requirements within these clauses to better align with commercial
standards and practices.
DATES: This rule is effective on September 4, 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 at [email protected] or
202-501-4755. Please cite GSAR Case 2020-G510.
SUPPLEMENTARY INFORMATION:
I. Background
This final rule amends the (GSAR) to standardize and simplify the
Multiple Award Schedule (Schedule) clauses for economic price
adjustments.
GSA published a proposed rule in the Federal Register at 88 FR
78710 on November 16, 2023. One respondent submitted comments in
response to the proposed rule.
II. Discussion and Analysis
GSA reviewed the public comments in the development of the final
rule; however, no changes were made as a result of the public comments
received. A discussion of the public comments received is provided as
follows:
A. Summary of Significant Changes
There are no significant changes from the proposed rule.
[[Page 63326]]
B. Analysis of Public Comments
1. Support for the Rule
Comment: The respondent expressed support for the rule.
Response: GSA acknowledges the respondent's support for the rule.
2. Training
Comment: The respondent recommended contracting officers receive
training on processing Schedule economic price adjustment (EPA)
requests.
Response: GSA acknowledges the respondent's recommendation and will
consider their recommendations as part of the training plan for this
rule. GSA plans on reviewing and updating existing Schedule EPA
training resources. GSA also intends to provide training to the
acquisition workforce, including contracting officers.
3. Guidance
Comment: The respondent recommended guidance be revised and, if
applicable, developed to support the processing of Schedule EPA
requests.
Response: GSA acknowledges the respondent's recommendation and will
consider their recommendations within the update of Schedule EPA
guidance. GSA plans on updating existing Schedule EPA guidance to
support the implementation of this rule. Guidance will include
direction to contracting officers on how to properly process EPA
requests based on the type of EPA mechanism (e.g., a fixed escalation
rate and market indicator) identified in the contractor's Schedule
contract.
C. Summary of Minor Changes
1. General. The final rule renumbers the clause 552.238-118,
Economic Price Adjustment--Federal Supply Schedule Contracts, to
552.238-120, Economic Price Adjustment--Federal Supply Schedule
Contracts. The renumbering of this clause ensures consistency with the
changes made to the GSAR that went into effect July 8, 2024 (see 89 FR
48330, June 6, 2024).
2. Section 501.106, OMB Approval under the Paperwork Reduction Act.
The final rule revises the entry for 552.238-120 to include Office of
Management and Budget (OMB) Control No. 3090-0306. The revision is
necessary to add all of the OMB information collections tied to this
clause.
3. Section 502.101, Definitions. The final rule revises the text
for the definition of ``Economic price adjustment (EPA) method'' in
order to add a parenthesis in front of the period.
4. Section 538.273, FSS solicitation provisions and contract
clauses. The final rule includes the redesignation of the clause
552.238-120, Economic Price Adjustment--Federal Supply Schedule
Contracts, from paragraph (d)(38) to paragraph (d)(41). This change
ensures the clauses listed in paragraph (d) of GSAR 538.273 remain in
numerical order.
5. Section 538.273, FSS solicitation provisions and contract
clauses. The final rule includes the removal of the following ``Use in
Federal Supply Schedule solicitations and contracts.'' The removal of
this text ensures consistency with the changes made to this section,
which went into effect February 12, 2024 (see 89 FR 2172, January 12,
2024).
III. Expected Impact of the Rule
This rule will benefit the Schedule program as a whole. For
example, GSA anticipates that these changes will increase the number
and extent of offerings available through the Schedule program, improve
customer satisfaction/reduce customer cost by ensuring needed products,
services, and solutions are not removed from the Schedule program due
to market volatility, and reduce administrative costs on Schedule
contractors, particularly small businesses and new entrants.
GSA receives hundreds of modification requests each month from
contractors to remove items from their Schedule contracts or declined
orders due to price variability in the commercial market. By statute,
the procedures for the Schedule program are competitive so long as they
are open to all and contracts and orders result in the lowest overall
cost alternative. GSA anticipates this rule will help it ensure
customers experience the lowest overall cost alternative on their
orders by maximizing the chance that full solutions are available on
the Schedule contract, thus minimizing the need to conduct multiple
separate acquisitions to fulfill a requirement.
Currently, Schedule contracts included at least one of the
following four clauses related to the submission and processing of EPA
requests during contract performance: (1) an authorized deviation to
GSAR clause 552.216-70; (2) Alternate I of GSAR clause 552.216-70; (3)
clause I-FSS-969; or (4) an Alternate of clause I-FSS-969. This rule
standardizes and simplifies the EPA requirements contained in these
four clauses. This rule consolidates these four clauses into a single
Schedule EPA clause. These changes do not alter the way Schedule
contractors conduct business, or their ability to submit an EPA
request.
The qualitative anticipated benefits include, but are not limited
to, the creation of a single standardized Schedule EPA clause; greater
flexibility around EPA requests; providing clarity around EPA within
the Schedule program; providing a connection between the Schedule
solicitation and resultant contracts; and greater flexibility and
agility for purposes of responding to changing conditions.
GSA anticipates the quantitative benefits to be related to improved
regulatory familiarization. GSA calculates the estimated total cost for
Schedule contractors to familiarize themselves with existing EPA
requirements as $3,251,640 (i.e., 3 hours \* \ $77.42 \1\ (GS-12 Step 5
base pay plus ``Rest of US Locality Pay'' plus ``Fringe'') \*\ 14,000
approximate number of current Schedule contractors)). After these
revisions: GSA estimates the total cost as $2,709,700 (i.e., 2.5 hours
\*\ $77.42 (GS-12 Step 5 base pay plus ``Rest of US Locality Pay'' plus
``Fringe'') \*\ 14,000 approximate number of current Schedule
contractors)). Resulting in a reduction in estimated total cost of
$541,940.
---------------------------------------------------------------------------
\1\ 2023 Rest of US, 12 Step 5 x 2.0 fringe = $77.42; the rate
is adjusted upward by 100% to adjust for overhead and benefits.
---------------------------------------------------------------------------
IV. Executive Orders 12866, 13563, and 14094
Executive Order (E.O.) 12866 (Regulatory Planning and Review)
directs 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 (Improving Regulation and Regulatory
Review) 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) has
determined that 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.
[[Page 63327]]
V. Congressional Review Act
OIRA has determined that this rule is not a major rule under 5
U.S.C. 804(2). Subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996 (codified at 5 U.S.C. 801-808), also known as the
Congressional Review Act or CRA, 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 under the CRA cannot take effect until 60 days
after it is published in the Federal Register.
VI. Regulatory Flexibility Act
GSA does not expect this final rule to have a significant economic
impact on a substantial number of small entities within the meaning of
the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because this
rule is to standardize and simplify existing EPA requirements related
to Schedule (e.g., revise GSAR clause 552.216-70, Economic Price
Adjustment-FSS Multiple Award Schedule Contracts).
The underlying purpose of the changed text remains the same (i.e.,
supporting the submission and processing of EPA requests), and
therefore any burden would have been identified previously.
There were no significant issues raised by the public comments in
response to the initial regulatory flexibility analysis. A Final
Regulatory Flexibility Analysis (FRFA) has been prepared consistent
with 5 U.S.C. 603 et seq. The FRFA is summarized as follows:
The objective of the rule is to standardize and simplify the
clauses for Schedules related to EPA. These revisions consolidate
the four existing Schedule clauses into a single Schedule EPA
clause. These revisions also remove certain procedural limits
contained in these clauses to better align with commercial standards
and practices. GSA anticipates that these changes will increase the
number and extent of offerings available through the Schedule
program, improve customer satisfaction/reduce customer costs by
ensuring needed products, services, and solutions are not removed
from the Schedule program, and reduce administrative costs on
Schedule contractors, particularly small businesses and new
entrants.
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 Schedule program.
The rule applies to both large and small businesses, which are
awarded Schedule contracts. Information obtained from FAS as well as
the recent renewal of Information Collections 3090-0235 and 3090-
0306 were used as the basis for estimating the number of Schedule
contractors that this rule may impact. For Fiscal Year 2023 there
were approximately 14,000 Schedule contractors, of which over 12,000
(85 percent) were small business entities. In addition, according to
the recent renewal of Information Collections 3090-0235 and 3090-
0306, GSA processes approximately 2,561 EPA requests annually. GSA
anticipates this rule will not significantly impact this number.
The rule does not implement new or changed reporting,
recordkeeping, or other compliance requirements for Schedule
contracts. The rule merely updates and clarifies existing EPA
requirements currently used in Schedule contracts.
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 requirements prescribed in existing
Schedule EPA clauses are already being followed. The rule merely
updates and clarifies these existing requirements so as to reduce
burden for both the government and contractors as it relates to EPA
within Schedule contracts.
Interested parties may obtain a copy of the FRFA from the
Regulatory Secretariat Division. The Regulatory Secretariat Division
has submitted a copy of the FRFA to the Chief Counsel for Advocacy of
the Small Business Administration.
VII. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 3501) does apply;
however, these changes do not impose additional information collection
requirements to the burden previously approved under OMB Control Number
3090-0235, titled: Federal Supply Schedule Pricing Disclosures and
Sales Reporting and OMB Control Number 3090-0306, titled: Transactional
Data Reporting. Both OMB information collections, however, will be
updated to reflect the change in the clause title and number from
552.216-70, Economic Price Adjustment--FSS Multiple Award Schedule
Contracts, to 552.238-120, Economic Price Adjustment--Federal Supply
Schedule Contracts.
List of Subjects in 48 CFR Parts 501, 502, 538, and 552
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 501, 502, 538, and 552 as set
forth below:
0
1. The authority citation for 48 CFR parts 501, 502, 538, and 552
continues to read as follows:
Authority: 40 U.S.C. 121(c).
PART 501--GENERAL SERVICES ADMINISTRATION ACQUISITION REGULATION
SYSTEM
0
2. In section 501.106, amend table 1 by--
0
a. Revising the entry for ``516.506'';
0
b. Removing the entry for ``552.216-70''; and
0
c. Adding, in numerical order, entries for ``552.238-83'' and
``552.238-120''.
The revision and additions read as follows:
501.106 OMB approval under the Paperwork Reduction Act.
* * * * *
Table 1 to 501.106
------------------------------------------------------------------------
GSAR reference OMB control No.
------------------------------------------------------------------------
* * * * *
516.506................................... 3090-0248, 3090-0306
* * * * *
552.238-83................................ 3090-0235, 3090-0306
* * * * *
552.238-120............................... 3090-0235, 3090-0306
* * * * *
------------------------------------------------------------------------
PART 502--DEFINITIONS OF WORDS AND TERMS
0
3. Amend section 502.101 by adding, in alphabetical order, the
definition of ``Economic price adjustment (EPA) method'' to read as
follows:
502.101 Definitions.
* * * * *
Economic price adjustment (EPA) method means the agreed upon
procedure by which pricing may be adjusted throughout the contract
period to include, but not limited to, the mechanism(s) to be used to
adjust pricing (e.g., adjustments based on established pricing), the
pricing subject to adjustment, and any other
[[Page 63328]]
requirements (e.g., timing, frequency, limits on increases).
* * * * *
PART 538--FEDERAL SUPPLY SCHEDULE CONTRACTING
0
4. Amend section 538.273 by adding paragraph (d)(41) to read as
follows:
538.273 FSS solicitation provisions and contract clauses.
* * * * *
(d) * * *
(41) 552.238-120, Economic Price Adjustment--Federal Supply
Schedule Contracts.
* * * * *
PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
552.216-70 [Removed]
0
5. Remove section 552.216-70.
0
6. Amend section 552.238-115 by:
0
a. Revising the date of the clause;
0
b. Removing paragraph (d)(10)(i);
0
c. Redesignating paragraphs (d)(10)(ii) and (iii) as paragraphs
(d)(10)(i) and (ii); and
0
d. Adding new paragraph (d)(10)(iii).
The revision and addition read as follows:
552.238-115 Special Ordering Procedures for the Acquisition of Order-
Level Materials.
* * * * *
Special Ordering Procedures for the Acquisition of Order-Level
Materials (DATE)
* * * * *
(d) * * *
(10) * * *
(iii) 552.238-120, Economic Price Adjustment--Federal Supply
Schedule Contracts.
* * * * *
0
7. Add section 552.238-120 to read as follows:
552.238-120 Economic Price Adjustment--Federal Supply Schedule
Contracts.
As prescribed in 538.273(d), insert the following clause:
552.238-120 Economic Price Adjustment--Federal Supply Schedule
Contracts (DATE)
(a) Definition.
Economic price adjustment method, as used in this clause, means the
agreed upon procedures by which pricing may be adjusted throughout the
contract period to include, but not limited to, the mechanism(s) to be
used to adjust pricing (e.g., adjustments based on established
pricing), the pricing subject to adjustment, and any other requirements
(e.g., timing, frequency, limits on increases).
(b) General. This contract provides for economic price adjustment
(EPA) to contract pricing based on the established EPA method. EPA
provides for the increase and decrease to stated contract pricing upon
the occurrence of specified conditions described in the EPA method,
such as market index changes or unforeseeable significant changes in
market conditions.
(c) Exceptions. This clause does not cover--
(1) Adjustments based on statute, Executive Order, or regulation
(e.g., Service Contract Labor Standards (41 U.S.C. chapter 67) and
AbilityOne procurements (FAR subpart 8.7));
(2) Adjustments based on a change clause (e.g., paragraph (c) of
GSAR clause 552.212-4, Contract Terms and Conditions--Commercial
Products and Commercial Services (FAR DEVIATION 52.212-4));
(3) Price reductions made under GSAR clause 552.238-81, Price
Reductions;
(4) Adjustments based on GSAR clause 552.238-117, Price Adjustment-
Failure to Provide Accurate Information; and
(5) Adjustments based on a contract clause that authorizes an
adjustment based on specified actions or conditions.
(d) Economic price adjustment method. The EPA method may be revised
through mutual agreement of the parties. In the event of a conflict
between the EPA method and this contract, the contract shall control.
(e) Submission requirements. The Contractor shall submit EPA
requests to the Federal Supply Schedule (FSS) Contracting Officer
pursuant to the EPA method. EPA requests shall fully conform to the
requirements of the EPA method and include sufficient information to
support the request. The FSS Contracting Officer may request additional
information from the Contractor.
(f) Contracting Officer responsibilities. The FSS Contracting
Officer will--
(1) Review the EPA request to ensure conformance with the EPA
method,
(2) Make a determination. The FSS Contracting Officer may use any
information (e.g., market research) deemed necessary to support their
determination. The FSS Contracting Officer may determine to--
(i) Accept the EPA request either in whole or in part,
(ii) Reject the EPA request either in whole or in part, or
(iii) Take any other action deemed to be in the best interest of
the Government (e.g., negotiate a more favorable EPA).
(3) Notify the Contractor of their determination, and
(4) Modify the contract, as applicable, to reflect the
determination. Contract items that need to be removed from the contract
as a result of rejection or an inability to reach agreement are to be
removed in accordance with 552.238-79, Cancellation.
(g) Effective date. EPA requests approved by the FSS Contracting
Officer under this clause shall apply to orders issued on or after the
effective date of the contract modification. Blanket Purchase
Agreements (BPAs) may be modified by the ordering agency in accordance
with the terms and conditions of the BPA.
(h) Update of contract pricing and catalog data. The Contractor
shall update its FSS pricing and any other FSS catalog data in
accordance with the terms and conditions of this contract.
(End of clause)
[FR Doc. 2024-16980 Filed 8-2-24; 8:45 am]
BILLING CODE 6820-61-P
