[Federal Register Volume 73, Number 132 (Wednesday, July 9, 2008)]
[Proposed Rules]
[Pages 39275-39277]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-15587]
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GENERAL SERVICES ADMINISTRATION
48 CFR Parts 516 and 552
[GSAR Case 2006-G504; Docket 2008-0007; Sequence 7]
RIN 3090-AI58
General Services Acquisition Regulation; GSAR Case 2006-G504;
Rewrite of GSAR Part 516; Types of Contracts
AGENCY: Office of the Chief Acquisition Officer, General Services
Administration (GSA).
ACTION: Proposed rule.
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SUMMARY: The General Services Administration (GSA) is proposing to
amend the General Services Acquisition Regulation (GSAR) to revise
language pertaining to requirements for types of contracts.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat on or before September 8, 2008 to be considered
in the formulation of a final rule.
ADDRESSES: Submit comments identified by GSAR Case 2006-G504 by any of
the following methods:
Regulations.gov: http://www.regulations.gov.Submit
comments via the Federal eRulemaking portal by inputting ``GSAR Case
2006-G504'' under the heading ``Comment or Submission.'' Select the
link ``Send a Comment or Submission '' that corresponds with GSAR Case
2006-G504. Follow the instructions provided to complete the ``Public
Comment and Submission Form.'' Please include your name, company name
(if any), and ``GSAR Case 2006-G504'' on your attached document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat Division (VPR), 1800 F Street, NW, Room 4041, ATTN:
Laurieann Duarte, Washington, DC 20405.
Instructions: Please submit comments only and cite GSAR Case 2006-
G504 in all correspondence related to this case. All comments received
will be posted without change to http://www.regulations.gov, including
any personal and/or business confidential information provided.
[[Page 39276]]
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Cecelia Davis at (202) 219-0202, or by e-mail at
[email protected]. For information pertaining to the status or
publication schedules, contact the Regulatory Secretariat (VPR), Room
4035, GS Building, Washington, DC 20405, (202) 501-4755. Please cite
GSAR Case 2006-G504.
SUPPLEMENTARY INFORMATION:
A. Background
The General Services Administration (GSA) is amending the General
Services Administration Acquisition Regulation (GSAR) to revise the
prescriptions for clauses included in GSAR 516.203-4, Contract clauses,
and GSAR 516.506, Solicitation provisions and contract clauses, and to
make minor changes to GSAR 516.603-3, Limitations. The associated
clauses located in GSAR 552.216 are amended to relocate the clause at
552.216-70, Economic Price Adjustment--FSS Multiple Award Schedule
Contracts, to GSAR 552.238, to retain the clause at 552.216-71,
Economic Price Adjustment-Stock and Special Order Program Contracts, to
revise GSAR clause 552.216-72, Placement of Orders, to make minor edits
to GSAR clause 552.216-73, Ordering Information, and to include new
GSAR clause 552.216-XX, Task-Order and Delivery-Order Ombudsman.
This proposed rule is a result of the General Services
Administration Acquisition Manual (GSAM) Rewrite initiative. The
initiative was undertaken by GSA to revise the GSAM to maintain
consistency with the FAR and implement streamlined and innovative
acquisition procedures that contractors, offerors, and GSA contracting
personnel can utilize when entering into and administering contractual
relationships. The GSAM incorporates the General Services
Administration Acquisition Regulation (GSAR) as well as internal agency
acquisition policy.
GSA will rewrite each part of the GSAR and GSAM, and as each GSAR
part is rewritten, will publish it in the Federal Register.
This proposed rule revises GSAR 516.203-4, Contract clauses,
516.506, Solicitation provisions and contract clauses, and associated
clauses in GSAR 552.516. The information in GSAR 516.203-4(a) is
relocated to GSAR Part 538 and paragraph (b) is renumbered accordingly
and contains minor edits. GSAR 516.506 is revised to delete paragraphs
(b), (c), (d), and (e) from this part and relocate them to GSAR Part
538. New GSAR clause, 552.216-XX, Task-Order and Delivery-Order
Ombudsman, is added to describe the GSA Ombudsman's responsibilities.
GSAR 516.603-3, Limitations, is renumbered as 516.603-70 as a
supplement to the FAR and the title is changed to ``Limitations'' on
the use of letter contracts for architect-engineer (A-E) services. GSAR
clause 552.216-70, Economic Price Adjustment--FSS Multiple Award
Schedule Contracts, is relocated to GSAR Part 538. The GSAR clause at
552.216-72, Placement of Orders, is revised to delete Alternates II,
III, and IV and relocate them to GSAR Part 538, and it contains minor
edits. The GSAR clause at 552.216-73, Ordering Information, contains
minor edits.
Discussion of Comments
There were six public comments received in response to the
``Advanced Notice of Proposed Rulemaking.'' The first commenter
suggested that the GSAR should include coverage on Governmentwide
acquisition contracts (GWAC) and the use of GSA assisted services. The
GWAC and assisted services are very closely related: GSA's assisted
services are offered through GWAC contracts. GWACs are negotiated
acquisitions covered by FAR Part 15 (GSAM 515), while FAR Part 16 (GSAM
Part 516) covers the authority for GWACs (i.e., IDIQ contracts). Both
GSAM parts are in the rewrite effort so, to a degree, the comment is
being addressed. During our rewrite process, our proposed coverage of
GWACs and assisted services was determined to be satisfactory by the
cognizant office within FAS. We construe the comment, however, to mean
that the GSAM should devote a special section to GWACs and assisted
services, such as is done in GSAM 538 which addresses the Federal
Supply Schedule Program. The suggestion is not without merit: however,
it is outside the scope of the current GSAM effort, which did not
envision the creation of new GSAM parts. The current effort has
revealed a number of issues that need to be addressed in future updates
to the GSAM and we propose to revisit that comment when future
revisions are considered. The second commenter suggested establishing a
central location for all contract clauses GSA includes in FSS and GWAC
contracts: in particular, the clauses denoted as ``x-FSS clauses.'' One
of the purposes of the GSAM rewrite is to put all clauses used by GSA
in the GSAM. While this goal may not be 100 percent achieved in the
initial rewrite effort, at some point in time all clauses will be in
one place--the GSAM.
The third and fourth commenter submitted a response that said GSA
schedule holders are penalized because they are subject to the Economic
Price Adjustment clause limiting price increase to 10 percent after a
one-year waiting period. GSAR clauses 552.216-70 and 552.216-71
establish contract coverage for economic price adjustments under
Multiple Award Schedules (MAS) and Global Supply Item contracts,
respectively. With respect to the MAS, GSAR clause 552.216-70, this
comment will be addressed in the coverage for GSAR Part 538. GSAR
clause 552.216-71 indicates that there is a 10 percent cap on such
adjustments unless the Contracting Director approves a higher
percentage. In addition, the percentage actually used should be based
on historical trends drawn from an index such as the Producer Price
Index (PPI). In these cases, the GSAR mirrors the FAR's guidance on
economic price adjustments for standard supplies (non-Schedule) as
outlined in FAR clause 52.216-2, which also includes the 10 percent
cap. Accordingly, the GSAR coverage (meant to be used for a subset of
all supply contracts, specifically FAS Schedules) follows the FAR, and
the change requested would require a change to the FAR and cannot be
made independently in the GSAR. Also, the GSAR makes clear that the
percentage used in Schedule contracts (whether above or below 10
percent) is to be based on established historical trends (PPI) and not
on a negotiation between one agency and one contractor on each
individual contract. This allows the percentage established for each
contract to be based on objective data. This percentage should normally
be 10 percent, unless based on a trend established by an appropriate
index such as the Producer Prices and Price Index during the most
recent 6-month period indicates that a different percentage is more
appropriate. The fifth commenter recommended that the GSAR be revised
to clarify that subcontractor labor hours under a Time and Material
(T&M) contract are paid at the rates established in the prime contract
or task order. Although the recommendation references ``Time and
Material'' contracts, the issue deals with contract financing and
should be addressed in GSAM Part 532, Contract Financing. The sixth
commenter recommended that the GSAR be revised to provide that
contractors may apply G&A to travel costs and other direct changes in
accordance with each vendor's approved cost accounting standards
disclosure statement. This issue will be addressed in the rewrite of
GSAR Part 531.
[[Page 39277]]
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 under5 U.S.C. 804.
B. Regulatory Flexibility Act
The General Services Administration does not expect this proposed
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 revisions are not considered substantive.
An Initial Regulatory Flexibility Analysis has, therefore, not been
performed. We invite comments from small businesses and other
interested parties. GSA will consider comments from small entities
concerning the affected GSAR Parts 516 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 2006-G504), in
correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
changes to the GSAM do not impose information collection requirements
that require the approval of the Office of Management and Budget under
44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 516 and 552
Government procurement.
Dated: July 2, 2008
Al Matera,
Director, Office of Acquisition Policy.
Therefore, GSA proposes to amend 48 CFR parts 516 and 552 as set
forth below:
1. The authority citation for 48 CFR parts 516 and 552 is revised
to read as follows:
Authority: 40 U.S.C. 121(c).
PART 516--TYPES OF CONTRACTS
2. Amend section 516.203-4 by--
a. Removing paragraph (a), and redesignating paragraphs (b) and (c)
as (a) and (b), respectively;
b. Revising the newly redesignated paragraph (a);
c. Removing from the newly redesignated paragraph (b)(1) ``you
decide'' and adding ``the contracting officer decides'' in its place;
and
d. Removing the period from the end of the newly redesignated
paragraphs (b)(1)(i) and (b)(1)(ii) and adding a semicolon in its
place; and removing the period from the newly redesignated paragraph
(b)(1)(iii) and adding ``; and ''in its place.
The revised text reads as follows:
516.203-4 Contract clauses.
(a) Special Order Program Contracts. In multiyear solicitations and
contracts, after making the determination required by FAR 16.203-3, use
552.216-71, Economic Price Adjustment-Stock and Special Order Program
Contracts, or a clause prepared as authorized in paragraph (a)(3) of
this subsection.
* * * * *
3. Amend section 516.506 by--
a. Removing from paragraph (a), ``FSS'' each time it appears and
adding ``FAS'', in its place; and
b. Removing paragraphs (b), (c), (d), and (e) and adding new
paragraph (b), to read as follows:
516.506 Solicitation provisions and contract clauses.
* * * * *
(b) In solicitations and contracts for GSA awarded IDIQ contracts,
insert the clause 552.216-XX, Task-Order and Delivery-Order Ombudsman.
4. Amend section 516.603-3 by--
a. Revising the section heading;
b. Revising paragraph (a);
c. Removing from the introductory text of paragraph (b) ``You'' and
adding ``The contracting officer'', in its place, and revising
paragraph (b)(1); and
d. Removing from paragraph (c) ``you must issue'' and adding ``the
contracting officer issues,'' in its place.
The revised text reads as follows:
516.603-70 Limitations on the use of letter contracts for architect-
engineer (A-E) services.
(a) Requirement for a price proposal. The proposed A-E must provide
a price proposal for the non-design effort before the award of a letter
contract.
(b) * * *
(1) The scope. If the scope includes the design effort, the
contracting officer should only authorize the A-E to perform those
services that are independent of the design effort (for example,
feasibility studies, existing facility surveys or site investigation,
etc.). Do not authorize the A-E to begin the design effort before the
letter contract is definitized.
* * * * *
PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
552.216-70 [Removed]
5. Remove section 552.216-70.
552.216-71 [Amended]
6. Amend section 552.216-71 by removing from theintroductory text
of the clause ``516.203-4(b)'' and adding ``516.203-4(a)'' in its
place.
7. Amend section 552.216-72 by--
a. Removing from paragraph (c) ``GSA's Federal Supply Service
(FSS)'' and adding ``General Services Administration's Federal
Acquisition Service (FAS)'', in its place; and removing from the second
sentence ``FSS'' and adding ``FAS'' in its place;
b. Removing from paragraph (a) of Alternate I ``Federal Supply
Service (FSS)'' and adding ``Federal Acquisition Service (FAS)'' in its
place;
c. Removing from paragraphs (c) and (d) of Alternate I ``FSS'' and
adding ``FAS'' in its place, respectively; and
d. Removing Alternates II, III, and IV.
552.216-73 [Amended]
8. Amend section 552.216-73 in paragraph (a) by removing ``Federal
Supply Service (FSS)'' and adding ``Federal Acquisition Service (FAS)''
in its place.
552.216-XX [Added]
9. Add section 552.216-XX to read as follows:
552.216-XX Task-Order and Delivery-Order Ombudsman.
As prescribed in 516.506, insert the following clause:
TASK-ORDER AND DELIVERY-ORDER OMBUDSMAN (DATE)
The GSA Ombudsman will exercise jurisdiction on any matters
pertaining to ID/IQ contracts awarded by GSA. The ombudsman will
review complaints from contractors and ensure that they are afforded
a fair opportunity to be considered for award, consistent with the
procedures in the contract.
(End of clause)
[FR Doc. E8-15587 Filed 7-8-08; 8:45 am]
BILLING CODE 6820-61-S