[Federal Register Volume 68, Number 88 (Wednesday, May 7, 2003)]
[Rules and Regulations]
[Pages 24372-24382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-11271]
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GENERAL SERVICES ADMINISTRATION
48 CFR Parts 511, 516, 532, 538, 546, and 552
[GSAR Amendment 2003-01; GSAR Case No. 2002-G505]
RIN 9000-AH76
General Services Administration Acquisition Regulation; Federal
Supply Schedule Contracts--Acquisition of Information Technology by
State and Local Governments Through Federal Supply Schedules
AGENCIES: Office of Acquisition Policy, General Services Administration
(GSA).
ACTION: Interim rule with request for comments.
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SUMMARY: The General Services Administration (GSA) is amending the
General Services Administration Acquisition Regulation (GSAR) to
implement section 211 of the E-Government Act of 2002. Section 211
authorizes the Administrator of GSA to provide for the use by States or
local governments of its Federal Supply Schedules for automated data
processing equipment (including
[[Page 24373]]
firmware), software, supplies, support equipment, and services.
DATES: Effective Date: May 7, 2003.
Applicability Date: This amendment applies to solicitations and
existing contracts for Schedule 70, Information Technology (IT), and
the Corporate Schedule, containing Information Technology (IT) Special
Item Numbers SINs, as defined in GSAM 538.7001, Definitions, Schedule
70. Further, this amendment applies to contracts awarded after the
effective date of this rule for Schedule 70 and Corporate Schedule
contracts containing IT SINs. Existing Schedule 70 contracts and
Corporate Schedule contracts containing IT SINs, shall be modified by
mutual agreement of both parties.
Comment Date: Interested parties should submit comments to the
Regulatory Secretariat at the address shown below on or before July 7,
2003 to be considered in the formulation of a final rule.
ADDRESSES: Submit written comments to-- General Services
Administration, Regulatory Secretariat (MVA), 1800 F Street, NW., Room
4035, Attn: Ms. Laurie Duarte, Washington, DC 20405. Submit electronic
comments via the Internet [email protected]. Please submit
comments only and cite GSAR case 2002-G505, in all correspondence
related to this case.
FOR FURTHER INFORMATION CONTACT: The Regulatory Secretariat, Room 4035,
GS Building, Washington, DC 20405, (202) 501-4755, for information
pertaining to status or publication schedules. For clarification of
content, contact Ms. Linda Nelson, Procurement Analyst, at (202) 501-
1900. Please cite GSAR case 2002-G505. The TTY Federal Relay Number for
further information is 1-800-877-8973.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule amends GSAM Parts 511, 516, 532, 538 and 552 to
implement Section 211 of the E-Government Act of 2002. Section 211 of
the E-Government Act of 2002 (Pub. L. 107-347) amended the Federal
Property and Administrative Services Act to allow for ``cooperative
purchasing,'' where the Administrator of GSA provides States and
localities access to certain items offered through GSA's supply
schedules. Section 211 amends 40 U.S.C. 502 by adding a new subsection
``(c)'' that allows, to the extent authorized by the Administrator, a
State or local government to use Federal Supply Schedules of the
General Services Administration to purchase automated data processing
equipment (ADPE) (including firmware), software, supplies, support
equipment, and services. ``State or local government'' includes any
State, local, regional, or tribal government, or any instrumentality
thereof (including any local educational agency or institution of
higher education). Eligible ordering activities (as defined in 552.238-
78(b), Scope of Contract (Eligible Ordering Activities)) are
encouraged, but not required, to use the ordering procedures outlined
in Federal Acquisition Regulation Subpart 8.4 (48 CFR Chapter 1,
Subpart 8.4).
GSA published a proposed rule in the Federal Register at 68 FR
3220, January 23, 2003. GSA concluded that the proposed rule should be
converted to an interim rule, with substantive changes. The interim
rule modifies the proposed rule to--
[sbull] Incorporate schedule 70 information technology (IT) special
item numbers (SINs) that are included in IT ``corporate'' schedule
contracts;
[sbull] Delete the language regarding dealer sales and their impact
on the price reduction clause from the clause at 552.232-83,
Contractor's Billing Responsibilities;
[sbull] Permit authorized state and local governments to add terms
and conditions as part of the statement of work (SOW) or statement of
objectives (SOO) required by the state or local government statutes,
ordinances, regulations or orders to the extent that they do not
conflict with the schedule contract terms and conditions; and
[sbull] Revise the disputes language in the clause at 552.238-79,
Use of Federal Supply Schedule Contracts by Entities--Cooperative
Purchasing, to encourage the use of Alternative Dispute Resolution to
the extent authorized by law.
B. Summary and Discussion of Significant Comments
Twenty-four respondents submitted public comments during the
comment period. These comments were considered in the formulation of
the interim rule and their disposition is summarized as follows:
1. Scope of Rule
a. Several respondents addressed whether Information Technology
(IT) available on the GSA corporate schedule will be available for
State or local use.
Response: Yes. However, only the Corporate Schedule contracts
containing IT Special Item Numbers (SINs), will be available for State
or local use.
b. One respondent objected to the inclusion of Architect and
Engineering services in the schedules program as violating both the
Brooks Architect and Engineering Act and most state statutes.
Response: Neither the proposed rule, nor the interim rule, add
Architect and Engineering services to the schedules program. Neither
the Brooks Architect and Engineering Act, nor the state statutes
identified in the respondent's comments, apply to the information
technology hardware, software or services provided by Schedule 70 or
the information technology corporate Schedule contracts containing IT
SINs.
c. Several contractors responding to the rule expressed interest in
participating in this program; however, the products and services they
offer do not fall within the scope of the products and services offered
under Schedule 70 or the Corporate Schedule, containing IT SINs, or
they have IT services on another Federal Supply Schedule in support of
other Federal supply classes not covered by this rule.
Response: Cooperative purchasing may only be conducted pursuant to
statutory authorization. Section 211 of the e-Government Act of 2002
authorizes GSA to provide State and local government entities access to
information technology products, services, and support equipment.
Section 211 does not grant authority to GSA to broaden the scope of
this rule to include products and services other than those
specifically authorized by that Section. However, to the extent any
business offers a product or service that falls within the scope of the
rule, that entity may seek to sell their product or service to the
Federal Government, states, and localities, by negotiating a schedule
contract under Schedule 70 or the Corporate Schedule, containing IT
SINs.
d. One respondent expressed concern with allowing dealers to sell
to State and local governments.
Response: Disagree. State and local government entities should be
able to access the same distribution network for goods and services as
all other authorized users of the GSA Schedules.
e. One respondent raised concerns about extending cooperative
purchasing to commodities other than IT.
Response: The statute and this regulation limit application of
cooperative purchasing to IT products, services, and support equipment.
2. Ordering
a. One respondent inquired as to whether State and local entities
will be allowed to: place orders through existing BPAs; establish BPAs;
and place orders against future BPAs.
Response: State and local entities will not be allowed to place
orders through
[[Page 24374]]
BPAs established prior to this rule unless the State or local entity
was previously identified as a user of the BPA consistent with law.
However, State and local entities will be allowed to establish their
own BPAs upon issuance of an effective rule.
b. Several respondents addressed issues involving e-Commerce.
Response: These comments are outside the scope of the proposed
rule. However, GSA may conduct a business case analysis to evaluate the
feasibility of allowing non-federal eligible ordering activities to use
GSA Advantage! or any other e-commerce.
c. Several respondents objected to the language, which prohibits
eligible ordering activities from adding additional terms and
conditions.
Response: This restrictive language has been removed. Eligible
ordering activities may add terms and conditions required by statutes,
ordinances, regulations, or orders, to the extent that they do not
conflict with the schedule contract terms and conditions.
d. Several respondents raised concerns regarding the language added
to the clause at 552.232-83, Contractor's Billing Responsibilities,
concerning dealer sales. They asserted that the language appears to
conflict with the language in paragraph (d)(3) of the clause at
552.238-75, concerning eligible ordering activities.
Response: The language in the clause at 552.232-83, Contractor's
Billing Responsibilities, was removed.
e. Several respondents objected to limiting acceptance or decline
of orders to five days because their contracts allow longer time
periods to decline order.
Response: To the extent that the language of individually
negotiated contracts allows for a longer response time, that contract
language prevails.
f. Several respondents objected to allowing the vendors to decline
orders placed by State and local entities.
Response: The e-Government Act makes clear that vendor
participation is voluntary. Section 211 of the Act states in paragraph
(c)(2), ``Voluntary Use--In any case of the use by a State or local
government of a Federal supply schedule pursuant to paragraph (1),
participation by a firm that sells to the Federal Government through
the supply schedule shall be voluntary with respect to a sale to the
State or local government through such supply schedule.'' (Emphasis
added.)
g. One respondent raised a concern whether various states
implementing the model procurement code will be able to use the GSA
schedules under this proposed rule.
Response: This issue is outside the scope of the proposed rule.
States and localities will need to make their own legal determinations
as to whether use of the schedules is consistent with their laws,
regulations, and other policies.
h. One respondent questioned whether the FAR ordering procedures
must be used by non-federal eligible ordering activities.
Response: The preamble now contains language, which encourages the
use of Federal Acquisition Regulation Subpart 8.4 (48 CFR Chapter 1,
Subpart 8.4), but does not require its use.
3. Fees
a. Several respondents asked for further clarity on when a
particular sale should be recorded as a schedule sale for purposes of
calculating the industrial funding fee.
Response: The proposed rule does not address this topic and any
clarification of this issue would be subject to its own rulemaking.
b. Various respondents suggested that the Industrial Funding Fee be
waived for cooperative purchasing sales or remitted to the States.
Response: GSA instituted the Industrial Funding Fee as a means of
cost recovery at the direction of Congress. GSA does not intend to
waive this feature of its program.
4. Dispute Resolution
a. Several respondents suggested that dispute resolution for State
and local government entities be performed by the GSA Board of Contract
Appeals (GSBCA).
Response: Under the proposed rule as well as this interim rule,
orders placed by eligible ordering activities create new contracts to
which the Federal Government is not a party. The jurisdiction of the
GSBCA depends upon the Contract Disputes Act of 1978 and is limited to
review of contract disputes where the Federal Government awards the
contract. To implement the change proposed by the commenter would
require a change to the Contract Disputes Act.
b. Several respondents addressed the desirability of allowing
contract disputes to be resolved through arbitration or other forms of
alternative dispute resolution.
Response: The interim rule addresses this issue. Paragraph (a)(1)
of the clause at 552.238-79, Use of Federal Supply Schedule Contracts
by Certain Entities--Cooperative Purchasing, encourages the use of
alternative dispute resolution to the extent authorized by law.
5. Other Issues
a. One respondent opposed Most Favored Customer pricing clauses.
Response: This issue is beyond the scope of this rule, which
focuses on making certain schedule contracts available for cooperative
purchasing. The proposed rule does not change existing GSA Multiple
Award Schedule pricing policies.
b. One respondent suggested that State and local entities be able
to contribute past performance history for Schedule 70 contractors.
Response: To the extent that past performance information is
voluntarily submitted to the GSA contracting officer by State and local
government entities as a result of cooperative purchasing, the GSA
shall give the information due consideration in future negotiations
regarding the contractor's continued participation in the schedules
program and selling to States and localities.
c. One respondent addressed the concern regarding the origin of
products from non-qualified sources.
Response: This issue is outside the scope of this rule. Existing
statutes and regulations address this concern already.
d. One respondent asked GSA to commit to establishing a program for
awarding schedule contracts to small businesses specializing in doing
business with State and local governments.
Response: This issue is outside the scope of the rule. GSA has
existing programs to encourage small businesses to seek schedule
contracts.
e. One respondent asked how FSS will be able to monitor and assess
the effect of cooperative purchasing.
Response: To evaluate the effect of cooperative purchasing, GSA
intends to monitor changes in access for federal customers and the
impact on GSA's ability to negotiate favorable pricing and terms and
conditions. GSA will also monitor participation by small businesses.
f. One respondent suggested that contractors be allowed to modify
their contracts if they no longer wished to accept orders from State
and local government under its Schedule contract.
Response: The statute requires that participation be voluntary on
the part of the contractors. Contractors wishing to be removed from
participation in cooperative purchasing, after electing to participate,
should submit a contract modification request to their GSA contracting
officer.
[[Page 24375]]
C. List of Information Technology Special Item Numbers
State and local governments are authorized to procure IT products
and services from Schedule 70, Information Technology and the Corporate
Schedule contracts containing the IT SINs listed below. The listing of
SINs is also available at http://fss.gsa.gov/elibrary. Click on
Schedules e-Library. A logo will identify all the participating
contractors and special items numbers available for purchase by
eligible non-federal ordering activities.
Schedule 70 Special Item Numbers
SPECIAL ITEM NO. 132-3 LEASING OF PRODUCT (FPDS Code W070)
SPECIAL ITEM NO. 132-4 DAILY / SHORT TERM RENTAL (FPDS Code W070)
SPECIAL ITEM NO. 132-8 PURCHASE OF EQUIPMENT
FSC Class 7010--System Configuration
End User Computers/Desktop Computers
Professional Workstations
Servers
Laptop/Portable/Notebook Computers
Large Scale Computers
Optical and Imaging Systems
Other System Configuration Equipment Not Elsewhere Classified
FSC Class 7025--Input/Output and Storage Devices
Printers
Displays
Graphics, including Video Graphics, Light Pens, Digitizers, Scanners,
and Touch Screens
Network Equipment
Other Communications Equipment
Optical Recognition Input/Output Devices
Storage Devices, including Magnetic Storage, Magnetic Tape Storage and
Optical Disk Storage
Other Input/Output and Storage Devices Not Elsewhere Classified
FSC Class 7035--ADP Support Equipment
ADP Support Equipment
FSC Class 7042--Mini and Micro Computer Control Devices
Microcomputer Control Devices
Telephone Answering and Voice Messaging Systems
FSC Class 7050--ADP Components
ADP Boards
FSC Class 5995--Cable, Cord, and Wire Assemblies: Communications
Equipment
Communications Equipment Cables
FSC Class 6015--Fiber Optic Cables
Fiber Optic Cables
FSC Class 6020--Fiber Optic Cable Assemblies and Harnesses
Fiber Optic Cable Assemblies and Harnesses
FSC Class 6145--Wire and Cable, Electrical
Coaxial Cables
FSC Class 5805--Telephone and Telegraph Equipment
Telephone Equipment
Audio and Video Teleconferencing Equipment
FSC Class 5810--Communications Security Equipment and Components
Communications Security Equipment
FSC Class 5815--Teletype and Facsimile Equipment
Facsimile Equipment (FAX)
FSC Class 5820--Radio and Television Communication Equipment, Except
Airborne
Two-Way Radio Transmitters/Receivers/Antennas
Broadcast Band Radio Transmitters/Receivers/Antennas
Microwave Radio Equipment/Antennas and Waveguides
Satellite Communications Equipment
FSC Class 5821--Radio and Television Communication Equipment, Airborne
Airborne Radio Transmitters/Receivers
FSC Class 5825--Radio Navigation Equipment, Except Airborne
Radio Navigation Equipment/Antennas
FSC Class 5826--Radio Navigation Equipment, Airborne
Airborne Radio Navigation Equipment
FSC Class 5830--Intercommunication and Public Address Systems, Except
Airborne
Pagers and Public Address Systems (wired and wireless transmission,
including background music systems)
FSC Class 5841--Radar Equipment, Airborne
Airborne Radar Equipment
FSC Class 5895--Miscellaneous Communication Equipment
Miscellaneous Communications Equipment
Special Physical, Visual, Speech, and Hearing Aid Equipment
Used Equipment
Installation for equipment offered under SIN 132-8 (FPDS Code N070)
Deinstallation for equipment offered under SIN 132-8 (FPDS Code N070)
Reinstallation for equipment offered under SIN 132-8 (FPDS Code N070)
Special Item No. 132-12 Maintenance of Equipment, Repair Service, and
Repair Parts/Spare Parts (FPDS Code for Maintenance and Repair
Service--J070; FSC Class for Repair Parts/Spare Parts--See FSC Class
for basic equipment)
Special Item No. 132-32 Term Software Licenses
FSC Class 7030--Information Technology Software
Large Scale Computers
Operating System Software
Application Software
Electronic Commerce (EC) Software
Utility Software
Communications Software
Core Financial Management Software
Ancillary Financial Systems Software
Special Physical, Visual, Speech, and Hearing Aid Software
Microcomputers
Operating System Software
Application Software
Electronic Commerce (EC) Software
Utility Software
Communications Software
Core Financial Management Software
Ancillary Financial Systems Software
Special Physical, Visual, Speech, and Hearing Aid Software
Special Item No. 132-33 Perpetual Software Licenses
FSC Class 7030--Information Technology Software
Large Scale Computers
Operating System Software
Application Software
Electronic Commerce (EC) Software
Utility Software
Communications Software
Core Financial Management Software
Ancillary Financial Systems Software
Special Physical, Visual, Speech, and Hearing Aid Software
Microcomputers
Operating System Software
Application Software
Electronic Commerce (EC) Software
Utility Software
Communications Software
Core Financial Management Software
Ancillary Financial Systems Software
Special Physical, Visual, Speech, and Hearing Aid Software
Special Item No. 132-34 Maintenance of Software
Special Item No. 132-50 Training Courses for Information Technology
Equipment and Software (FPDS Code U012)
[[Page 24376]]
Special Item No. 132-51 Information Technology Professional Services
IT Facility Operation and Maintenance (FPDS CODE D301)
IT Systems Development Services (FPDS CODE D302)
IT Systems Analysis Services (FPDS Code D306)
Automated Information Systems Design and Integration Services (FPDS
Code D307)
Programming Services (FPDS Code D308)
IT Backup and Security Services (FPDS Code D310)
IT Data Conversion Services (FPDS Code D311)
Computer Aided Design/Computer Aided Manufacturing (CAD/CAM) Services
(FPDS Code D313)
IT Network Management Services (FPDS Code D316)
Automated News Services, Data Services, or Other Information Services
(FPDS Code D317)
Other Information Technology Services, Not Elsewhere
Classified (FPDS Code D399)
Special Item No. 132-52 Electronic Commerce Services FPDS Code D304--
ADP and Telecommunications Transmission Services
Value Added Network Services (VANS)
E-Mail Services
Internet Access Services
Navigation Services
FPDS CODE D399--OTHER DATA TRANSMISSION SERVICES, NOT ELSEWHERE
CLASSIFIED (except ``Voice'' and Pager Transmission Services)
Special Item No. 132-53 Wireless Services (FPDS Code D304)
Excluding local and long distance voice, data, video, and dedicated
transmission services which are NOT mobile)
Paging Services
Cellular/PCS Voice Services
Corporate Schedule Special Item Numbers
[sbull] C 5805, Telephone and Telegraph Equipment
[sbull] C 5810, Communications Security Equipment and Components
[sbull] C 5815, Teletype and Facsimile Equipment (includes Ticker,
Tape and Sigtot Equipment)
[sbull] C 5820C, Radio and Television Communication Equipment,
Except Airborne, Includes Telemetering Equipment; Monitors and
Monitors/Receivers, Including Spare & Repair Parts and Accessories;
Television Cameras, Color or Monochrome, Including Spare & Repair Parts
and Accessories; Audio Equipment, Including Spare and Repair Parts &
Accessories; Telecommunications Equipment, Including Spare and Repair
Parts & Accessories.
[sbull] C 5821B, Radio and Television Communication Equipment,
Airborne, Includes Telemetering Equipment.
[sbull] C 5825, Radio Navigation Equipment, Except Airborne,
Includes Loran Equipment; Shoran Equipment; Direction Finding
Equipment.
[sbull] C 5826, Radio Navigation Equipment, Airborne, Includes
Loran Equipment; Shoran Equipment; Direction Finding Equipment.
[sbull] C 5830, Intercommunication and Public Access Systems,
Except Airborne, Includes Wired Audio Systems; Office Type Systems;
Shipboard Systems; Tank Systems.
[sbull] C 5841, Radar Equipment, Airborne, Note-Radar assemblies
and subassemblies designed specifically for use with fire control
equipment or guided missiles are excluded from this class and are
included in the appropriate classes of Group 12 or Group 14.
[sbull] C 5895B, IT Communication Equipment.
[sbull] C 5995, Cable, Cord, and Wire Assemblies: Communications
Equipment, Includes only those types of cable, cord, and Wire
Assemblies and Sets (and Wiring Harnesses) used on or with equipment
and components covered by Groups 58 and 59.
[sbull] C 6015, Fiber Optic Cables.
[sbull] C 6020, Fiber Optic Cable Assemblies and Harnesses.
[sbull] C 6145B, Coaxial Cable for IT.
[sbull] C 7010, UT Equipment System Configuration.
[sbull] C 7025, IT Input/Output and Storage Devices.
[sbull] C 7030, IT Software.
[sbull] C 7035, IT Support Equipment.
[sbull] C 7042, Mini and Micro Computer Control Devices.
[sbull] C 7050, IT Components.
[sbull] C D301, IT Facility Operation and Maintenance Services.
[sbull] C D302, IT Systems Development Services.
[sbull] C D304, IT Telecommunications and Transmission Services.
[sbull] C D306, IT Systems Analysis Services.
[sbull] C D307, Automated Information System Design and Integration
Services.
[sbull] C D308, Programming Services.
[sbull] C D310, IT Backup and Security Services.
[sbull] C D311, IT Data Conversion Services.
[sbull] C D313, Computer Aided Design/Computer Aided. Manufacturing
(CAD/CAM).
[sbull] C D316, Telecommunications Network Management Services.
[sbull] C D317, Automated News Services, Data Services, or Other
Information Services.
[sbull] C D399, Other ADP and Telecommunications Services (includes
data storage on tapes, compact disks, etc.).
[sbull] C J070, Information Technology--Maintenance of Equipment,
Repair Services and/or Repair/Spare Parts.
[sbull] C N070, Information Technology Installation of IT Equipment
(including firmware), software, supplies and support equipment.
[sbull] C U012, IT Software, Equipment, and Telecommunications
Training.
[sbull] C W070, Lease or Rental of Equipment.
D. Unfunded Mandates Reform Act and Executive Order 13132
The following statutes and Executive orders do not apply to this
rulemaking: Unfunded Mandates Reform Act of 1995; Executive Order
13175, Consultation and Coordination with Indian Tribal Governments;
and Executive Order 13132, Federalism.
E. Executive Order 12866
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
F. Regulatory Flexibility Act
An Initial Regulatory Flexibility Analysis (IRFA) has been prepared
and submitted to the Chief Counsel for Advocacy of the Small Business
Administration. Copies of the IRFA are available from the Regulatory
Secretariat. GSA will consider comments from small entities concerning
the affected GSAR Parts 511, 516, 532, 538, and 552 in accordance with
5 U.S.C. 610. Interested parties must submit such comments separately
and should cite 5 U.S.C 601, et seq., GSAR case 2002-G505, in
correspondence. The IRFA indicates that the interim rule will affect
large and small entities including small businesses that are awarded
Schedule 70 contracts and Corporate Schedule contracts containing IT
SINs, under the GSA Federal Supply Schedule program; non-schedule
contractors, including small businesses, contracting with State or
local governments; and small governmental jurisdictions that will be
eligible to place orders under Schedule 70 contracts and Corporate
Schedule
[[Page 24377]]
contracts containing IT SINs. The analysis is as follows:
This Initial Regulatory Flexibility Analysis has been prepared
consistent with the criteria of 5 U.S.C. 604.
1. Description of the reasons why action by the agency is being
considered.
To implement section 211, Authorization for Acquisition of
Information Technology by States and Local Governments through
Federal Supply Schedules, of the E-Government Act of 2002 (Pub. L.
107-347). Section 211 amends section 502 of title 40, United States
Code, to authorize the Administrator to provide for use by State or
local governments of Federal Supply Schedules of the General
Services Administration for automated data processing equipment
(including firmware), software, supplies, support equipment, and
services. The rule opens the Federal Supply Schedule 70 and
Corporate Schedule contracts containing information technology (IT)
Special Item Numbers (SINs), for use by other governmental entities
to enhance intergovernmental cooperation.
2. Succinct statement of the objectives of, and legal basis for
the interim rule.
The interim rule will implement section 211 of the E-Government
Act of 2002 with the objective of opening the Federal Supply
Schedule 70 and Corporate Schedule contracts containing IT SINs for
use by other governmental entities to enhance intergovernmental
cooperation. The goal of the new rule is to make ``government''
(considering all levels) more efficient by reducing duplication of
effort and utilizing volume purchasing techniques for the
acquisition of IT products and services.
3. Description of, and where feasible, estimate of the number of
small entities to which the interim rule will apply.
The rule will affect large and small entities including small
businesses, that are awarded Schedule 70 contracts and Corporate
Schedule contracts containing IT SINs, under the GSA Federal Supply
Schedule program; non-schedule contractors, including small
businesses, contracting with State or local governments; and small
governmental jurisdictions that will be eligible to place orders
under Schedule 70 and Corporate Schedule contracts containing IT
SINs. Approximately sixty-eight percent (2,300) of GSA Schedule 70
contractors are small businesses and approximately sixty-eight
percent (125) of Corporate Schedule contractors are small
businesses. All of those small business Schedule 70 contractors, and
Corporate Schedule contractors, containing IT SINs will be allowed,
at the schedule contractor's option, to accept orders from State and
local governments. Obviously, the expanded authority to order from
Schedule 70 and Corporate Schedule contracts containing IT SINs,
could increase the sales of small business schedule contractors. It
is difficult to identify the number of non-schedule small businesses
that currently sell directly to State and local governments. The
ability of governmental entities to use Schedule 70 and Corporate
Schedule contracts containing IT SINs, may affect the competitive
marketplace in which those small businesses operate. State and local
government agencies could realize lower prices on some products and
services, less administrative burden and shortened procurement lead
times. The rule does not affect or waive State or local government
preference programs. Finally, small governmental jurisdictions will
also be affected. The 50 states, 3139 counties, 19,365 incorporated
municipalities, 30,386 minor subdivisions, 3,200 public housing
authorities, 14,178 school districts, 1,625 public educational
institutions of higher learning, and 550 Indian tribal governments
would be among those affected if they chose to order from Schedule
70 and Corporate Schedule contracts containing IT SINs. Federal
Supply Schedule contracts are negotiated as volume purchase
agreements, with generally very favorable pricing. The ability of
small governmental entities to order from Schedule 70 and associated
Corporate Schedule contracts holds out the potential for significant
cost savings for those organizations.
4. Description of projected reporting, recordkeeping, and other
compliance requirements of the rule, including an estimate of the
classes of small entities that will be subject to the requirement
and the type of professional skills necessary for preparation of the
report or record.
The interim rule makes changes in certain provisions or clauses
in order to recognize the fact that authorized non-federal ordering
activities may place orders under the contract. The Office of
Management and Budget under the Paperwork Reduction Act has
previously approved these clauses and the changes do not impact the
information collection or recordkeeping requirements.
5. Identification, to the extent practicable, of all relevant
Federal rules that may duplicate, overlap or conflict with the rule.
The interim rule does not duplicate, overlap, or conflict with
any other Federal rules.
6. Description of any significant alternatives to the interim
rule that accomplish the stated objectives of applicable statutes
and that minimize any significant economic impact of the rule on
small entities.
There are no practical alternatives that will accomplish the
objective of this rule.
G. Paperwork Reduction Act
The new provision at GSAR 552.232-82, Contractor's Remittance
(Payment) Address, contains an information collection requirement that
is subject to the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). The
provision provides for the offeror to indicate the payment address to
which checks should be mailed for payment of invoices and provides for
the offeror to identify participating dealers and provide their
addresses for receiving orders and payments on behalf of the
contractor. This information is the same as is normally required in the
commercial world and does not represent a Government-unique information
collection. Therefore, the estimated burden for this clause under the
Paperwork Reduction Act is zero. GSA has a blanket approval under
control number 3090-0250 from OMB for information collections with a
zero burden estimate.
The new clause at GSAR 552.232-83, Contractor's Billing
Responsibilities, contains a recordkeeping requirement that is subject
to the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). The clause
provides for the contractor to require all dealers participating in the
performance of the contract to agree to maintain certain records on
sales made under the contract on behalf of the contractor. The records
required are the same as those normally maintained by dealers in the
commercial world and do not represent a Government-unique recordkeeping
requirement. Therefore, the estimated burden for this clause under the
Paperwork Reduction Act is zero. GSA has a blanket approval under
control number 3090-0250 from OMB for information collections with a
zero burden estimate.
The revised clause at GSAR 552.238-75, Price Reductions, contains
an information collection requirement that is subject to the Paperwork
Reduction Act (44 U.S.C. 3501 et seq.) that has previously been
approved by the OMB under the Paperwork Reduction Act and assigned
control number 3090-0235. The changes made to the clause by this rule
do not have an impact on the information collection requirement, which
was previously approved. Therefore, it has not been submitted to OMB
for approval under the Act.
H. Determination To Issue an Interim Rule
A determination has been made under the authority of the
Administrator of General Services that urgent and compelling reasons
exist to promulgate this interim rule without prior opportunity for
public comment. This action is necessary to implement Section 211 of
the E-Government Act of 2002, signed by the President on December 17,
2002. This case was published for public comment as a proposed rule at
68 FR 3220, January 23, 2003, and resulting comments have been
incorporated into the rule. GSA wishes to obtain public comments on the
changes. Due to the statutory deadline, the rule is being issued as an
interim rule rather than as a second proposed rule. Title IV, Section
402 of the Act directed that within 120 days, the Administrator of
General Services implement the provision of the Act. However, pursuant
to Public Law 98-577 and FAR 1.501, public comments received in
response to this interim rule
[[Page 24378]]
will be considered in formulating the final rule.
List of Subjects in 48 CFR Parts 511, 516, 532, 538, 546, and 552
Government procurement.
Dated: May 2, 2003.
David A. Drabkin,
Deputy Associate Administrator, Office of Acquisition Policy.
0
Therefore, GSA amends 48 CFR parts 511, 516, 532, 538, 546, and 552 as
set forth below:
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1. The authority citation for 48 CFR parts 511, 516, 532, 538, 546, and
552 is revised to read as follows:
Authority: 40 U.S.C. 121(c).
PART 511--DESCRIBING AGENCY NEEDS
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2. Amend section 511.204 in paragraphs (c)(3) and (d) by adding a
sentence to the end of each paragraph to read as follows:
511.204 Solicitation provisions and contract clauses.
* * * * *
(c) * * *
(3) * * * In solicitations and contracts for FSS Schedule 70 and
the Corporate Schedule containing information technology Special Item
Numbers, use Alternate I.
(d) * * * In solicitations and contracts for FSS Schedule 70 and
the Corporate Schedule containing information technology Special Item
Numbers, use Alternate I.
PART 516--TYPES OF CONTRACTS
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3. Amend section 516.506 by redesignating paragraph (c) as paragraph
(d); adding a new paragraph (c); and revising the last sentence in the
newly designated paragraph (d) to read as follows:
516.506 Solicitation provisions and contract clauses.
* * * * *
(c) In solicitations and contracts for FSS Schedule 70 and the
Corporate Schedule containing information technology Special Item
Numbers, use 552.216-72, Placement of Orders, Alternate III, instead of
Alternate II.
(d) * * * Use 552.216-73 Alternate II when 552.216-72 Alternate II
or Alternate III are prescribed.
PART 532--CONTRACT FINANCING
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4. Revise section 532.206 to read as follows:
532.206 Solicitation provisions and contract clauses.
(a) Discounts for prompt payment. Include 552.232-8, Discounts for
Prompt Payments, in multiple award schedule solicitations and contracts
instead of the clause at FAR 52.232-8. In solicitations and contracts
for FSS Schedule 70 and the Corporate Schedule containing information
technology Special Item Numbers (SINs), use Alternate I.
(b) The contracting officer shall insert the clause at 552.232-81,
Payments by Non-Federal Ordering Activities, in solicitations and
schedule contracts for Schedule 70 and Corporate Schedule contracts
containing information technology SINs.
(c) The contracting officer shall insert the provision at 552.232-
82, Contractor's Remittance (Payment) Address, in all Federal Supply
Schedule solicitations and contracts.
(d) The contracting officer shall insert the clause at 552.232-83,
Contractor's Billing Responsibilities, in all Multiple Award Schedule
solicitations and contracts.
532.7003 Contract clause.
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5. Amend section 532.7003 by revising paragraph (b); and adding a new
paragraph (c) to read as follows:
* * * * *
(b) Federal Supply Service contracts. Use Alternate I of the clause
at 552.232-77 for all FSS schedule solicitations and contracts, except
Federal Supply Schedule 70, Information Technology, and the Corporate
Schedule contracts containing Information Technology Special Item
Numbers.
(c) Federal Supply Service schedule contracts for information
technology Special Item Numbers. In solicitations and contracts for FSS
Schedule 70 and the Corporate Schedule containing information
technology Special Item Numbers, use 552.232-79 instead of 552.232-77.
PART 538--FEDERAL SUPPLY SCHEDULE CONTRACTING
538.272 [Amended]
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6. Amend paragraph (a) of section 538.272 by removing ``Government''
each time it is used (twice) and adding ``eligible ordering
activities'' in its place.
0
7. Amend section 538.273 by revising the introductory text of paragraph
(a)(2); and adding a sentence at the end of paragraph (b)(2) to read as
follows:
538.273 Contract clauses.
(a) * * *
(2) 552.237-71, Submission and Distribution of Authorized FSS
Schedule Pricelists. In solicitations and contracts for FSS Schedule 70
and the Corporate Schedule contracts containing information technology
Special Item Numbers, use Alternate I. If GSA is not prepared to accept
electronic submissions for a particular schedule, delete:
* * * * *
(b) * * * In solicitations and contracts for FSS Schedule 70 and
the Corporate Schedule contracts containing information technology
Special Item Numbers, use Alternate I.
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8. Add Subpart 538.70 to read as follows:
Subpart 538.70 Cooperative Purchasing
Sec.
538.7000 Scope of subpart.
538.7001 Definitions.
538.7002 General.
538.7003 Policy.
538.7004 Solicitation provisions and contract clauses.
538.7000 Scope of subpart.
This subpart prescribes policies and procedures that implement
statutory provisions authorizing non-federal organizations to use
Schedule 70 and Corporate Schedule contracts containing information
technology Special Item Numbers (SINs).
538.7001 Definitions.
Ordering activity (also called ``ordering agency'' and ``ordering
office'') means an eligible ordering activity (see 552.238-78)
authorized to place orders under Federal supply schedule contracts.
Schedule 70, as used in this subpart, means Schedule 70 information
technology contracts, and corporate schedule contracts containing
information technology SINs. The Corporate Schedule is a compilation of
multiple individual Federal Supply Schedules; therefore, only the SINs
that fall under Schedule 70 of the Corporate Schedule will apply to
Cooperative Purchasing. No other Schedules, or SINs, containing
information technology outside of Schedule 70 SINs, and corporate
schedule contracts containing Schedule 70 SINs, will apply.
State and local government entities, as used in this subpart, means
the states of the United States, counties, municipalities, cities,
towns, townships, tribal governments, public authorities (including
public or Indian housing agencies under the United States Housing Act
of 1937), school districts, colleges and other institutions of higher
education, council of governments (incorporated or not), regional or
[[Page 24379]]
interstate government entities, or any agency or instrumentality of the
preceding entities (including any local educational agency or
institution of higher education), and including legislative and
judicial departments. The term does not include contractors of, or
grantees of, State or local governments.
(1) Local educational agency has the meaning given that term in
section 8013 of the Elementary and Secondary Education Act of 1965 (20
U.S.C. 7713).
(2) Institution of higher education has the meaning given that term
in section 101(a) of the Higher Education Act of 1965 (20 U.S.C.
1001(a)).
(3) Tribal government means--
(i) The governing body of any Indian tribe, band, nation, or other
organized group or community located in the continental United States
(excluding the State of Alaska) that is recognized as eligible for the
special programs and services provided by the United States to Indians
because of their status as Indians; and
(ii) Any Alaska Native regional or village corporation established
pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et
seq.).
538.7002 General.
(a) 40 U.S.C. 501, (the Act) authorizes the Administrator of
General Services to procure and supply personal property and
nonpersonal services for the use of Executive agencies. Under 40 U.S.C.
502, the goods and services available to executive agencies are also
available to mixed ownership Government corporations, establishments
within the legislative or judicial branches of Government (excepting
the Senate, House of Representatives, Architect of the Capitol, and any
activities under the direction of the Architect of the Capitol), the
District of Columbia, and Qualified Non-profit Agencies.
(b) Section 211 of the E-Government Act of 2002 amends 40 U.S.C.
502 to authorize the Administrator of General Services to provide for
use of certain Federal supply schedules of the GSA by a State or local
government, which includes any State, local, regional, or tribal
government, or any instrumentality thereof (including any local
educational agency or institution of higher education).
(c) State and local governments are authorized to procure only from
the information technology Federal Supply Schedule (Schedule 70)
contracts and Corporate Schedule contracts containing information
technology SINs. A listing of the participating contractors and SINs
for the products and services that are available through Schedule 70
and Corporate Schedule contracts containing information technology
SINs, is available in GSA's Schedules e-Library at web site http://fss.gsa.gov/elibrary. Click on Schedules e-Library and then click on
the ICON labeled Cooperative Purchasing, State and Local. The
contractors and the products and services available for cooperative
purchasing will be labeled with the ICON.
538.7003 Policy.
Preparing solicitations when schedules are open to eligible non-
federal entities. When opening Schedule 70 and the Corporate Schedule
containing information technology SINs, for use by eligible non-federal
entities, the contracting officer must make minor modifications to
certain Federal Acquisition Regulation and GSAM provisions and clauses
in order to make clear distinctions between the rights and
responsibilities of the U.S. Government in its management and
regulatory capacity pursuant to which it awards schedule contracts and
fulfills associated Federal requirements versus the rights and
responsibilities of eligible ordering activities placing orders to
fulfill agency needs. Accordingly, the contracting officer is
authorized to modify the following FAR provisions/clauses to delete
``Government'' or similar language referring to the U.S. Government and
substitute ``ordering activity'' or similar language when preparing
solicitations and contracts to be awarded under Schedule 70 and the
Corporate Schedule containing information technology SINs. When such
changes are made, the word ``(DEVIATION)'' shall be added at the end of
the title of the provision or clause. These clauses include but are not
limited to:
(a) 52.212-4, Contract Terms and Conditions--Commercial Items.
(b) 52.216-18, Ordering.
(c) 52.216-19, Order Limitations.
(d) 52.229-1, State and Local Taxes.
(e) 52.229-3, Federal, State, and Local Taxes.
(f) 52.232-7, Payments Under Time-and-Materials and Labor-Hour
Contracts.
(g) 52.232-17, Interest.
(h) 52.232-19, Availability of Funds for the Next Fiscal Year.
(i) 52.232-34, Payment by Electronic Funds Transfer--Other than
Central Contractor Registration
(j) 52.232-36, Payment by Third Party.
(k) 52.237-3, Continuity of Services.
(l) 52.246-4, Inspection of Services-Fixed Price.
(m) 52.246-6, Inspection-Time-and-Material and Labor-Hour.
(n) 52.247-34, F.O.B. Destination.
(o) 52.247-38, F.O.B. Inland Carrier Point of Exportation.
538.7004 Solicitation provisions and contract clauses.
(a) The contracting officer shall insert the clause at 552.238-77,
Definition (Federal Supply Schedules), in solicitations and schedule
contracts for Schedule 70 and the Corporate Schedule contracts
containing information technology SINs.
(b) The contracting officer shall insert the clause at 552.238-78,
Scope of Contract (Eligible Ordering Activities), in solicitations and
contracts for Schedule 70 and the Corporate Schedule contracts
containing information technology SINs.
(c) The contracting officer shall insert the clause at 552.238-79,
Use of Federal Supply Schedule Contracts by Certain Entities--
Cooperative Purchasing, in solicitations and Schedule 70 contracts and
the Corporate Schedule contracts containing information technology
SINs.
(d) See 552.107-70 for authorized FAR deviations.
PART 546--QUALITY ASSURANCE
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9. Amend section 546.710 in paragraph (b) by adding a sentence to the
end of the paragraph to read as follows:
546.710 Contract clauses.
* * * * *
(b) * * * In solicitations and contracts for FSS Schedule 70 and
the Corporate Schedule containing information technology Special Item
Numbers, use Alternate I.
PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
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10. Amend section 552.211-75 by adding Alternate I to read as follows:
552.211-75 Preservation, Packaging and Packing.
* * * * *
Alternate I (May 2003). As prescribed at 511.204(c)(3), insert the
following sentence in place of the last sentence of the clause:
Where special or unusual packing is specified in an order, but not
specifically provided for by the contract, such packing details must be
the subject of an agreement independently arrived at between the
ordering activity and the Contractor.
0
11. Amend section 552.211-77 by adding Alternate I to read as follows:
552.211-77 Packing List.
* * * * *
[[Page 24380]]
Alternate I (May 2003). As prescribed at 511.204(d), substitute
the following paragraphs (a)(3) and (b) for (a)(3) and (b) of the
basic clause:
(a)(3) Ordering activity order or requisition number;
(b) When payment will be made by Ordering activity commercial
credit card, in addition to the information in (a) above, the
packing list or shipping document shall include:
(1) Cardholder name and telephone number; and
(2) The term ``Credit Card.''
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12. Amend section 552.216-72 by adding Alternate III to read as
follows:
552.216-72 Placement of Orders.
* * * * *
Alternate III (May 2003). As prescribed in 516.506(c),
substitute the following paragraphs (a), (c), and (d) for paragraphs
(a), (c), and (d) of the basic clause:
(a) See 552.238-78, Scope of Contract (Eligible Ordering
Activities), for who may order under this contract.
(c) If the Contractor agrees, GSA's Federal Supply Service (FSS)
will place orders for eligible ordering activities, as defined in
paragraph (a) of the clause at 552.238-78, by EDI using computer-to-
computer EDI. If computer-to-computer EDI is not possible, FSS will
use an alternative EDI method allowing the Contractor to receive
orders by facsimile transmission. Subject to the Contractor's
agreement, other eligible ordering activities, as defined in
paragraphs (a) and (b) of the clause at 552.238-78, may also place
orders by EDI.
(d) When computer-to-computer EDI procedures will be used to
place orders, the Contractor shall enter into one or more Trading
Partner Agreements (TPA) with each ordering activity placing orders
electronically in order to ensure mutual understanding by the
parties of certain electronic transaction conventions and to
recognize the rights and responsibilities of the parties as they
apply to this method of placing orders. The TPA must identify, among
other things, the third party provider(s) through which electronic
orders are placed, the transaction sets used, security procedures,
and guidelines for implementation. Ordering activities may obtain a
sample format to customize as needed from the office specified in
paragraph (g) of this clause.
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13. Amend section 552.232-8 by adding Alternate I to read as follows:
552.232-8 Discounts for Prompt Payment.
* * * * *
Alternate I (May 2003). As prescribed in 532.206(a), remove
paragraph (d) and redesignate paragraphs (e), (f), and (g) as (d),
(e), and (f), respectively.
0
14. Add section 552.232-79 to read as follows:
552.232-79 Payment by Credit Card.
0
As prescribed in 532.7003(c) insert the following clause:
Payment By Credit Card (May 2003)
(a) Definitions.
Credit card means any credit card used to pay for purchases,
including the Governmentwide Commercial Purchase Card.
Governmentwide commercial purchase card means a uniquely
numbered credit card issued by a Contractor under GSA's
Governmentwide Contract for Fleet, Travel, and Purchase Card
Services to named individual Government employees or entities to pay
for official Government purchases.
Oral order means an order placed orally either in person or by
telephone.
(b) The Contractor must accept the credit card for payments
equal to or less than the micro-purchase threshold (see Federal
Acquisition Regulation 2.101) for oral or written orders under this
contract.
(c) The Contractor and the ordering agency may agree to use the
credit card for dollar amounts over the micro-purchase threshold,
and the Government encourages the Contractor to accept payment by
the purchase card. The dollar value of a purchase card action must
not exceed the ordering agency's established limit. If the
Contractor will not accept payment by the purchase card for an order
exceeding the micro-purchase threshold, the Contractor must so
advise the ordering agency within 24 hours of receipt of the order.
(d) The Contractor shall not process a transaction for payment
through the credit card clearinghouse until the purchased supplies
have been shipped or services performed.
Unless the cardholder requests correction or replacement of a
defective or faulty item under other contract requirements, the
Contractor must immediately credit a cardholder's account for items
returned as defective or faulty.
(e) Payments made using the Governmentwide commercial purchase
card are not eligible for any negotiated prompt payment discount.
Payment made using an ordering activity debit card will receive the
applicable prompt payment discount. (End of clause)
0
15. Add sections 552.232-81, 552.232-82, and 552.232-83 to read as
follows:
552.232-81 Payments by Non-Federal Ordering Activities.
As prescribed in 532.206(b), insert the following clause:
Payments By Non-Federal Ordering Activities (May 2003)
If eligible non-federal ordering activities are 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
activities. If eligible non-federal ordering activities are not
subject to a State prompt payment law, the terms and conditions of
the Federal Prompt Payment Act as reflected in Federal Acquisition
Regulation clause 52.232-25, Prompt Payment, or 52.212-4, Contract
Terms and Conditions--Commercial Items, apply to such activities in
the same manner as to Federal ordering activities. (End of clause)
552.232-82 Contractor's Remittance (Payment) Address.
As prescribed in 532.206(c), insert the following provision:
Contractor's Remittance (Payment) Address (May 2003)
(a) Payment by electronic funds transfer (EFT) is the preferred
method of payment. However, under certain conditions, the ordering
activity may elect to make payment by check. The offeror shall
indicate below the payment address to which checks should be mailed
for payment of proper invoices submitted under a resultant contract.
Payment Address:------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
-----------------------------------------------------------------------
(b) Offeror shall furnish by attachment to this solicitation,
the remittance (payment) addresses of all authorized participating
dealers receiving orders and accepting payment by check in the name
of the Contractor in care of the dealer, if different from their
ordering address(es) specified elsewhere in this solicitation. If a
dealer's ordering and remittance address differ, both must be
furnished and identified as such.
(c) All offerors are cautioned that if the remittance (payment)
address shown on an actual invoice differs from that shown in
paragraph (b) of this provision or on the attachment, the remittance
address(es) in paragraph (b) of this provision or attached will
govern. Payment to any other address, except as provided for through
EFT payment methods, will require an administrative change to the
contract.
Note: All orders placed against a Federal Supply Schedule
contract are to be paid by the individual ordering activity placing
the order. Each order will cite the appropriate ordering activity
payment address, and proper invoices should be sent to that address.
Proper invoices should be sent to GSA only for orders placed by GSA.
Any other ordering activity's invoices sent to GSA will only delay
your payment. (End of provision)
552.232-83 Contractor's Billing Responsibilities.
As prescribed in 532.206(d), insert the following clause:
Contractor's Billing Responsibilities (May 2003)
The Contractor is required to perform all billings made pursuant
to this contract. However, if the Contractor has dealers that
participate on the contract and the billing/payment process by the
Contractor for sales made by the dealer is a significant
administrative burden, the following alternative procedures may be
used. Where dealers are allowed by the Contractor to bill ordering
activities and accept payment in the Contractor's name, the
Contractor agrees to obtain from all dealers participating in the
performance of the contract a written agreement, which will require
dealers to--
[[Page 24381]]
(1) Comply with the same terms and conditions regarding prices
as the Contractor for sales made under the contract;
(2) Maintain a system of reporting sales under the contract to
the manufacturer, which includes--
(i) The date of sale;
(ii) The ordering activity to which the sale was made;
(iii) The service or product/model sold;
(iv) The quantity of each service or product/model sold;
(v) The price at which it was sold, including discounts; and
(vi) All other significant sales data.
(3) Be subject to audit by the Government, with respect to sales
made under the contract; and
(4) Place orders and accept payments in the name of the
Contractor in care of the dealer.
An agreement between a Contractor and its dealers pursuant to
this procedure will not establish privity of contract between
dealers and the Government. (End of clause)
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16. Amend section 552.238-71 by adding Alternate I to read as follows:
552.238-71 Submission and Distribution of Authorized FSS Schedule
Pricelists.
* * * * *
Alternate I (May 2003). As prescribed in 538.273(a)(2),
substitute the following paragraph (a) for paragraph (a) of the
basic clause:
(a) Definition. For the purposes of this clause, the Mailing
List is [Contracting officer shall insert either: ``the list of
addressees provided to the Contractor by the Contracting Officer''
or ``the Contractor's listing of its ordering activity customers''].
0
17. Amend section 552.238-75 by adding Alternate I to read as follows:
552.238-75 Price Reductions.
* * * * *
Alternate I (May 2003). As prescribed in 538.273(b)(2),
substitute the following paragraph (c)(2) for paragraph (c)(2) of
the basic clause, and substitute the following paragraph (d)(2) for
paragraph (d)(2) of the basic clause.
(c)(2) The Contractor shall offer the price reduction to the
eligible ordering activities with the same effective date, and for
the same time period, as extended to the commercial customer (or
category of customers).
(d)(2) To eligible ordering activities under this contract; or
0
18. Add sections 552.238-77 through 552.238-79 to read as follows:
552.238-77 Definition (Federal Supply Schedules).
As prescribed in 538.7004(a), insert the following clause:
Definition (Federal Supply Schedules) (May 2003)
Ordering activity (also called ``ordering agency'' and
``ordering office'') means an eligible ordering activity (see
552.238-78) authorized to place orders under Federal Supply Schedule
contracts. (End of clause)
552.238-78 Scope of Contract (Eligible Ordering Activities).
As prescribed in 538.7004(b), insert the following clause:
Scope of Contract (Eligible Ordering Activities) (May 2003)
(a) This solicitation is issued to establish contracts which may
be used on a nonmandatory basis by the agencies and activities named
below, as a source of supply for the supplies or services described
herein, for delivery within the 48 contiguous States and Washington,
D.C. For Special Item Number 132-53 Wireless Services ONLY, limited
geographic coverage (consistent with the Offeror's commercial
practice) may be proposed. Resultant contracts may also be used for
delivery to Alaska, Hawaii, the Commonwealth of Puerto Rico, and
overseas locations.
(1) Executive agencies (as defined in FAR Subpart 2.1) including
nonappropriated fund activities as prescribed in 41 CFR 101--
26.000);
(2) Government contractors authorized in writing by a Federal
agency pursuant to FAR 51.1;
(3) Mixed ownership Government corporations (as defined in the
Government Corporation Control Act);
(4) Federal Agencies, including establishments in the
legislative or judicial branch of government (except the Senate, the
House of Representatives and the Architect of the Capitol and any
activities under the direction of the Architect of the Capitol).
(5) The District of Columbia;
(6) Tribal governments when authorized under 25 U.S.C. 450j(k);
(7) Qualified Nonprofit Agencies as authorized under 40 U.S.C.
502(b); and
(8) Organizations, other than those identified in paragraph (b)
of this clause, authorized by GSA pursuant to statute or regulation
to use GSA as a source of supply.
(b) The following activities may place orders against
information technology schedule 70 contracts and Corporate Schedule
contracts containing information technology special item numbers, on
an optional basis; PROVIDED, the Contractor accepts order(s) from
such activities:
State and local government, includes any state, local, regional
or tribal government or any instrumentality thereof (including any
local educational agency or institution of higher learning).
(c) Articles or services may be ordered from time to time in
such quantities as may be needed to fill any requirement, subject to
the Order Limitations thresholds which will be specified in
resultant contracts. Overseas activities may place orders directly
with schedule contractors for delivery to CONUS port or
consolidation point.
(d) For orders received from activities within the Executive
Branch of the Government, each Contractor is obligated to deliver
all articles or services contracted for that may be ordered during
the contract term, except as otherwise provided herein.
(e) The Contractor is not obligated to accept orders received
from activities outside the Executive Branch; however, the
Contractor is encouraged to accept such orders. If the Contractor is
unwilling to accept such an order, the Contractor shall decline the
order in accordance with 552.238-79(6)(b)(2). Failure to return an
order shall constitute acceptance whereupon all provisions of the
contract shall apply.
(f) The Government is obligated to purchase under each resultant
contract a guaranteed minimum of $2,500 (two thousand, five hundred
dollars) during the contract term. (End of clause)
552.238-79 Use of Federal Supply Schedule Contracts by Certain
Entities--Cooperative Purchasing.
As prescribed in 538.7004(c), insert the following clause:
Use of Federal Supply Schedule Contracts by Certain Entities--
Cooperative Purchasing (May 2003)
(a) If an entity identified in paragraph (b) of the clause at
552.238-78, Scope of Contract (Eligible Ordering Activities), elects
to place an order under this contract, the entity agrees that the
order shall be subject to the following conditions:
(1) When the Contractor accepts an order from such an entity, a
separate contract is formed which incorporates by reference all the
terms and conditions of the Schedule contract except the Disputes
clause, the patent indemnity clause, and the portion of the
Commercial Item Contract Terms and Conditions that specifies
``Compliance with laws unique to Government contracts'' (which
applies only to contracts with entities of the Executive branch of
the U.S. Government). The parties to this new contract which
incorporates the terms and conditions of the Schedule contract are
the individual ordering activity and the Contractor. The U.S.
Government shall not be liable for the performance or nonperformance
of the new contract. Disputes which cannot be resolved by the
parties to the new contract may be litigated in any State or Federal
court with jurisdiction over the parties, applying Federal
procurement law, including statutes, regulations and case law, and,
if pertinent, the Uniform Commercial Code. To the extent authorized
by law, parties to this new contract are encouraged to resolve
disputes through Alternative Dispute Resolution.
(2) Where contract clauses refer to action by a Contracting
Officer or a Contracting Officer of GSA, that shall mean the
individual responsible for placing the order for the ordering
activity (e.g., FAR 52.212-4 at paragraph (f) and FSS clause I-FSS-
249 B.)
(3) As a condition of using this contract, eligible ordering
activities agree to abide by all terms and conditions of the
Schedule contract, except for those deleted clauses or portions of
clauses mentioned in paragraph (a)(1) of this clause. Ordering
activities may include terms and conditions required by statute,
ordinance, regulation or order as a part of a statement of work
(SOW) or statement of objective (SOO) to the extent that these terms
and conditions do not conflict with the terms and conditions of the
Schedule contract. The ordering activity and the Contractor
expressly acknowledge that, in entering into an agreement for the
ordering
[[Page 24382]]
activity to purchase goods or services from the Contractor, neither
the ordering activity nor the Contractor will look to, primarily or
in any secondary capacity, or file any claim against the United
States or any of its agencies with respect to any failure of
performance by the other party.
(4) The ordering activity is responsible for all payments due
the Contractor under the contract formed by acceptance of the
ordering activity's order, without recourse to the agency of the
U.S. Government, which awarded the Schedule contract.
(5) The Contractor is encouraged, but not obligated, to accept
orders from such entities. The Contractor may, within 5 days of
receipt of the order, decline to accept any order, for any reason.
The Contractor shall fulfill orders placed by such entities, which
are not declined within the 5-day period.
(6) The supplies or services purchased will be used for
governmental purposes only and will not be resold for personal use.
Disposal of property acquired will be in accordance with the
established procedures of the ordering activity for the disposal of
personal property.
(b) If the Schedule Contractor accepts an order from an entity
identified in paragraph (b) of the clause at 552.238-78, Scope of
Contract (Eligible Ordering Activities), the Contractor agrees to
the following conditions:
(1) The ordering activity is responsible for all payments due
the Contractor for the contract formed by acceptance of the order,
without recourse to the agency of the U.S. Government, which awarded
the Schedule contract.
(2) The Contractor is encouraged, but not obligated, to accept
orders from such entities. The Contractor may, within 5 days of
receipt of the order, decline to accept any order, for any reason.
The contractor shall decline the order using the same means as those
used to place the order. The Contractor shall fulfill orders placed
by such entities, which are not declined within the 5-day period.
(c) In accordance with clause 552.238-74, Contractor's Report of
Sales, the Contractor must report the quarterly dollar value of all
sales under this contract. When submitting sales reports, the
contractor must report two dollar values for each Special Item
Number: (1) the dollar value for sales to entities identified in
paragraph (a) of the clause at 552.238-78, Scope of Contract
(Eligible Ordering Activities), and (2) the dollar value for sales
to entities identified in paragraph (b) of clause 552.238-78. (End
of clause)
0
19. Amend section 552.246-73 by adding Alternate I to read as follows:
552.246-73 Warranty--Multiple Award Schedule.
* * * * *
Alternate I (May 2003). As prescribed in 546.710(b), substitute the
following paragraphs (b)(1) and (b)(3) for paragraphs (b)(1) and (b)(3)
of the basic clause:
(b)(1) The Contractor must provide, at a minimum, a warranty on all
non-consumable parts for a period of 90 days from the date that the
ordering activity accepts the product.
(b)(3) The Contractor must bear the transportation costs of
returning the products to and from the repair facility, or the costs
involved with Contractor personnel traveling to the ordering activity
facility for the purpose of repairing the product onsite, during the
90-day warranty period.
[FR Doc. 03-11271 Filed 5-5-03; 8:45 am]
BILLING CODE 6820-BR-P