[Federal Register Volume 69, Number 96 (Tuesday, May 18, 2004)]
[Rules and Regulations]
[Pages 28063-28066]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-11208]
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GENERAL SERVICES ADMINISTRATION
48 CFR Parts 511, 516, 532, 538, 546, and 552
[Amendment 2004-01; GSAR Case 2002-G505]
RIN 3090-AH76
General Services Administration Acquisition Regulation; Federal
Supply Schedule Contracts--Acquisition of Information Technology by
State and Local Governments Through Federal Supply Schedules
AGENCIES: General Services Administration (GSA), Office of Acquisition
Policy.
ACTION: Final rule.
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SUMMARY: The General Services Administration (GSA) has issued a final
rule 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 firmware), software,
supplies, support equipment, and services.
DATES: Effective Date: May 18, 2004.
Applicability Date: This amendment applies to solicitations and
existing contracts for Schedule 70, Information Technology (IT), and
Consolidated Products and Services Schedule contracts, 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 Consolidated Products and Services Schedule contracts,
containing IT SINs. Existing Schedule 70 contracts and Consolidated
Products and Services Schedule contracts, containing IT SINs, shall be
modified by mutual agreement of both parties.
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. The TTY Federal Relay Number for further information is 1-800-
877-8973. Please cite Amendment 2004-01, GSAR case 2002-G505.
SUPPLEMENTARY INFORMATION:
A. Background
1. Interim and Final Rules
GSA published an interim rule in the Federal Register at 68 FR
24372, May 7, 2003, with a request for comments. This interim rule
implemented 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 Federal Supply
Scheduless. 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).
GSA concluded that the interim rule should be converted to a final
rule with minor changes. In particular, the final rule amends--
GSAM Parts 511, 516, 532, 538, 546, and 552 to delete the
term ``Corporate'' Schedule and substitute it with ``Consolidated
Products and Services'' Schedule;
Paragraphs (d)(2) and (d)(3) of the clause at 552.238-75,
Price Reduction, to clarify that price reductions are not triggered for
sales made to State and local government entities under Cooperative
Purchasing;
Paragraphs (b) and (c) of the clause at 552.238-78, Scope
Of Contract (Eligible Ordering Activities), to define domestic and
overseas delivery, and provide the contractor the option of providing
supplies or services on an international basis; and paragraph (f) to
clarify the contractor's option in accepting or not accepting orders
from activities outside the Executive Branch of the Federal Government;
and
Paragraph (a)(1) of the clause at 552.238-79, Use of
Federal Supply Schedule Contracts by Certain Entities--Cooperative
Purchasing, to clarify that both contracts and Blanket Purchase
Agreements (BPAs) established under Cooperative Purchasing are separate
contracts; and paragraph (a)(3) to clarify that State and local
government entities may add terms and conditions other than those
required by statute, ordinance, regulation, or order.
2. Summary and Disposition of Comments
Comments were received from four respondents. These comments were
considered in the formulation of the final rule. A summary of the
comments and their respective disposition is as follows:
Comment: One respondent had concerns about State and local
government entities' ability to use the finance and leasing terms under
the GSA IT Schedule. Will State and local government entities have the
ability to terminate a lease for convenience, nonrenewal and
nonappropriation?
Response: State and local government entities are provided access
to all goods and services offered through both Schedule 70 and
Consolidated Products and Services Schedule contracts, containing IT
SINs. Further, State and local government entities are afforded the
same terms and conditions offered through those Schedules. State and
local government entities may include additional contract terms and
[[Page 28064]]
conditions; however, those terms and conditions may not contradict the
Schedule terms and conditions.
Comment: One respondent noted that the listing of services and
goods available through both Schedule 70 and Consolidated Products and
Services Schedule contracts, containing IT SINs, included FSC Class
5820, Radio and Television Communication Equipment, except Airborne.
The respondent inquired as to whether FSC Class 5820 was included as
part of section 211 of the e-Government Act of 2002, and; therefore,
available to State and local government entities.
Response: The services and goods available under FSC Class 5820,
Radio and Television Communication Equipment, except Airborne, are
available to State and local government entities only if they are
offered through Schedule 70 and Consolidated Products and Services
Schedule contracts containing IT SINs. No other Schedules are
authorized for State and local government use under section 211 of the
E-Government Act of 2002.
Comment: One respondent indicated that the clause at 552.238-75,
Price Reductions, should clarify whether price reductions to State and
local government entities would trigger the price reductions clause,
when the State and local government entities are also the category of
customer upon which the award is based.
Response: The Price Reductions clause has been modified to clarify
this point.
Comment: One respondent had concerns about the necessity for an
agreement between GSA and any participating State and local agencies
utilizing the schedules as a matter of management and oversight of the
program. Additionally, the respondent had concerns about a failure to
incorporate an express statement recognizing the primacy of state and
local contract law.
Response: Congress intended that GSA make available to State and
local governments the simplified acquisition methods and discounts
negotiated by GSA for IT goods and services. This grant of authority
does not give GSA any new powers to exercise oversight over the
acquisition offices of State and local governments. There are more than
three thousand counties, many of which have multiple entities with
independent procurement authority. The average State government has
hundreds of offices that may or may not choose to use GSA schedules as
a source of supply. Some jurisdictions may already have authority to
use GSA's IT schedules without supplementing the existing terms and
conditions. Some may require supplemental terms and conditions. Other
jurisdictions may never be able to use GSA's IT schedules, absent
changes in the law, as local law requires different procedures. These
determinations will need to be resolved by the local governmental
entities, in consultation with their legal counsel.
Comment: One respondent had concerns about the desirability of
authorizing State and local agencies to utilize the services of GSBCA
for purposes of dispute resolution. The commenter indicated that the
Inter-Governmental Cooperation Act grants authority for Federal
executive branch agencies to enter in cooperative agreements with other
governmental entities to provide services to those agencies which the
executive branch agencies otherwise perform.
Response: The Inter-Governmental Cooperation Act (IGCA) permits the
Federal Government to provide, to State and local governments,
specialized or technical services, i.e., functions which a Federal
agency is especially equipped and authorized by law to perform. Dispute
resolution, a commercially available service, is not the type of
service that historically has been offered under the IGCA.
B. 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.
C. 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.
D. Regulatory Flexibility Act
The rule may 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 small entities that are
awarded Schedule 70 contracts and Consolidated Products and Services
Schedule contracts, containing IT Special Item Numbers (SINs), under
the GSA Federal Supply Schedule program who elect to participate, can
contract with State or local governments and small governmental
jurisdictions that place orders under Schedule 70 and Consolidated
Products and Services Schedule contracts, containing IT SINs. The rule
is expected to benefit small business concerns, however, the net effect
of the rule is unknown at this time.
GSA has prepared a Final Regulatory Flexibility Analysis (FRFA),
and it reads as follows:
Final Regulatory Flexibility Analysis GSAR Case 2002-G505, Federal
Supply Schedule Contracts--Acquisition of Information Technology by
State and Local Governments Through Federal Supply Schedules
1. Statement of the need for, and objective of, the rule.
Section 211 Authorization for Acquisition of Information
Technology By States and Local Governments Through Federal Supply
Schedules, of the E-Government Act of 2002 (P.L. 107-347) 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, Information Technology (IT), and
Consolidated Products and Services Schedule contracts, containing
Information Technology (IT) Special Item Numbers (SINs) for use by
other governmental entities to enhance intergovernmental
cooperation.
2. Summary of the significant issues raised by the public
comments in response to the Initial Regulatory Flexibility Analysis,
a summary of the assessment of the agency of such issues, and a
statement of any changes made in the rule as a result of such
comments.
There were no public comments received in response to the
Initial Regulatory Flexibility Analysis.
3. Description of, and estimate of, the number of small entities
to which the rule will apply or an explanation of why no such
estimate is available.
The rule will affect large and small entities including small
businesses, that are awarded Schedule 70 contracts and Consolidated
Products and Services 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 Consolidated Products
and Services Schedule contracts, containing IT SINs. Approximately
eighty-five percent (3499) of GSA Schedule 70 contractors are small
businesses and approximately eighty-two percent (69) of Consolidated
Products and Services Schedule contracts, containing IT SINs, are
awarded to small businesses. All of those small business Schedule 70
contractors, and Consolidated Products and Services Schedule
contractors, containing IT SINs will be allowed, at the schedule
contractor's option, to accept orders from State and local
governments. As of September 10, 2003, 941 Schedule 70
[[Page 28065]]
contractors accepted the contract modification to participate in
cooperative purchasing of which approximately eighty-two percent
(772) were small businesses.
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 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. Description of steps the agency has taken to minimize
significant economic impact on small entities consistent with the
stated objectives of applicable statutes, including a statement of
the factual, policy, and legal reasons for selecting the alternative
adopted in the final rule and why each of the other significant
alternatives to the rule considered by the agency was rejected.
These revisions are the only alternatives to implement Section
211 of the E-Government Act of 2002. The rule should involve no
substantial risk to small entities, since participation is on a
voluntary basis.
E. 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.
List of Subjects in 48 CFR Parts 511, 516, 532, 538, 546, and 552
Government procurement.
Dated: May 12, 2004.
David A. Drabkin,
Deputy Associate Administrator, Office of Acquisition Policy.
0
Accordingly, GSA adopts the interim rule amending 48 CFR parts 511,
516, 532, 538, 546, and 552 which was published in the Federal Register
at 68 FR 24372, May 7, 2003, as a final rule with the following
changes:
PARTS 511, 516, 532, 538, 546, and 552--[AMENDED]
0
1. The authority citation for 48 CFR parts 511, 516, 532, 538, 546, and
552 continues to read as follows:
Authority: 40 U.S.C. 121(c).
511.204, 516.506, 532.206, 532.7003, 538.273, 538.7000, 538.7001,
538.7002, 538.7003, 538.7004, and 546.710 [Amended]
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2. In parts 511, 516, 532, 538, 546, and 552, remove the words
``Corporate Schedule'' and add, in their place, the words
``Consolidated Products and Services Schedule'' in the following
places:
a. 511.204(c)(3) and (d);
b. 516.506(c);
c. 532.206(a) and (b);
d. 532.7003(b) and (c);
e. 538.273(a)(2) and (b)(2);
f. 538.7000;
g. 538.7001, in the definition ``Schedule 70'' (four times);
h. 538.7002(c) (twice)
i. 538.7003, introductory paragraph (twice);
j. 538.7004(a), (b), and (c); and
k. 546.710(b).
PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
552.216-72 [Amended]
0
3. Amend section 552.216-72 in Alternate III by revising the date of
the Alternate to read ``May 2004''; and by removing the words
``paragraphs (a) and (b)'' from the last sentence of paragraph (c) and
adding ``paragraphs (a) and (d)'' in its place.
0
4. Amend section 552.238-75 by revising the date of the clause;
removing the word ``or'' from paragraph (d)(2); redesignating paragraph
(d)(3) as (d)(4); and adding a new paragraph (d)(3) to read as follows:
552.238-75 Price Reductions.
* * * * *
Price Reductions (May 2004)
* * * * *
(d) * * *
(3) Made to State and local government entities when the order
is placed under this contract (and the State and local government
entity is the agreed upon customer or category of customer that is
the basis of award); or
* * * * *
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5. Amend section 552.238-78 as follows:
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a. Revise the date of the clause;
0
b. Revise the introductory text of paragraph (a); and remove ``(b)''
from paragraph (a)(8) and add ``(d)'' in its place;
0
c. Remove paragraph (e);
0
d. Redesignate paragraphs (d) and (f) as paragraphs (f) and (g),
respectively, and revise newly designated paragraph (f);
0
e. Redesignate paragraphs (b) and (c) as paragraphs (d) and (e),
respectively, and add new paragraphs (b) and (c); and
0
f. Remove ``Corporate Schedule'' from newly designated paragraph (d)
and add ``Consolidated Products and Services Schedule'' in its place,
as follows:
552.238-78 Scope of Contract (Eligible Ordering Activities)
* * * * *
Scope of Contract (Eligible Ordering Activities) (May 2004)
(a) This solicitation is issued to establish contracts which may
be used on a nonmandatory basis by the agencies and activities named
below, as a source of supply for the supplies or services described
herein, for domestic and/or overseas delivery. For Special Item
Number 132-53, Wireless Services ONLY, limited geographic coverage
(consistent with the Offeror's commercial practice) may be proposed.
* * * * *
(b) Definitions. Domestic delivery is delivery within the 48
contiguous states, Alaska, Hawaii, Puerto Rico, Washington,
[[Page 28066]]
DC, and U.S. territories. Domestic delivery also includes a port or
consolidation point, within the aforementioned areas, for orders
received from overseas activities.
Overseas delivery is delivery to points outside of the 48
contiguous states, Washington, DC, Alaska, Hawaii, Puerto Rico, and
U.S. territories.
(c) Offerors are requested to check one of the following boxes:
[ballot] Contractor will provide domestic and overseas delivery.
[ballot] Contractor will provide overseas delivery only.
[ballot] Contractor will provide domestic delivery only.
* * * * *
(f)(1) The Contractor is obligated to accept orders received
from activities within the Executive branch of the Federal
Government.
(2) The Contractor is not obligated to accept orders received
from activities outside the Executive branch; however, the
Contractor is encouraged to accept such orders. If the Contractor
elects to accept such orders, all provisions of the contract shall
apply, including clause 552.232-79, Payment by Credit Card. If the
Contractor is unwilling to accept such orders, and the proposed
method of payment is not through the Credit Card, the Contractor
shall return the order by mail or other means of delivery within 5
workdays from receipt. If the Contractor is unwilling to accept such
orders, and the proposed method of payment is through the Credit
Card, the Contractor must so advise the ordering activity within 24
hours of receipt of order. (Reference clause 552.232-79, Payment by
Credit Card.) Failure to return an order or advise the ordering
activity within the time frames of this paragraph shall constitute
acceptance whereupon all provisions of the contract shall apply.
* * * * *
0
6. Amend section 552.238-79 by--
0
a. Revising the date of the clause;
0
b. Removing ``(b)'' from the introductory text of paragraph (a) and
adding ``(d)'' in its place;
0
c. Adding a sentence to the end of paragraph (a)(1);
0
d. Revising the second sentence of paragraph (a)(3);
0
e. Removing ``paragraph (b)'' from the introductory text of paragraph
(b) and adding ``paragraph (d)'' in its place;
0
f. Removing the word ``contractor'' from the third sentence of
paragraph (b)(2) and adding ``Contractor'' in its place; and
0
g. Revising paragraph (c) to read as follows:
552.238-79 Use of Federal Supply Schedule Contracts by Certain
Entities--Cooperative Purchasing.
* * * * *
Use of Federal Supply Schedule Contracts by Certain Entities--
Cooperative Purchasing (May 2004)
(a) * * *
(1) * * * Likewise, a Blanket Purchase Agreement (BPA), although
not a contract, is an agreement that may be entered into by the
Contractor with such an entity and the Federal Government is not a
party.
* * * * *
(3) * * * Ordering activities may include terms and conditions
required by statute, ordinance, regulation, order, or as otherwise
allowed by State and local government entities as a part of a
statement of work (SOW) or statement of objective (SOO) to the
extent that these terms and conditions do not conflict with the
terms and conditions of the Schedule contract. * * *
* * * * *
(c) In accordance with clause 552.238-74, Industrial Funding Fee
and Sales Reporting, the Contractor must report the quarterly dollar
value of all sales under this contract. When submitting sales
reports, the Contractor must report two dollar values for each
Special Item Number:
(1) The dollar value for sales to entities identified in
paragraph (a) of the clause at 552.238-78, Scope of Contract
(Eligible Ordering Activities), and
(2) The dollar value for sales to entities identified in
paragraph (d) of clause 552.238-78.
(End of clause)
[FR Doc. 04-11208 Filed 5-17-04; 8:45 am]
BILLING CODE 6820-BR-P