[Federal Register Volume 73, Number 147 (Wednesday, July 30, 2008)]
[Proposed Rules]
[Pages 44208-44210]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-17373]
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GENERAL SERVICES ADMINISTRATION
48 CFR Parts 525 and 552
[GSAR Case 2006-G520; Docket 2008-0007; Sequence 15]
RIN 3090-AI66
General Services Acquisition Regulation; GSAR Case 2006-G520;
Rewrite of GSAR Part 525, Foreign Acquisition
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 update the
text addressing foreign acquisition. This rule is a result of the
General Services Administration Acquisition Manual (GSAM) Rewrite
initiative undertaken by GSA to revise the GSAM to maintain consistency
with the FAR, and to 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
[[Page 44209]]
rewrite each part of the GSAR and GSAM, and as each part is rewritten,
will publish it in the Federal Register.
This part is a continuance in a series of revisions. It covers the
rewrite of GSAR Part 525, Foreign Acquisition.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat on or before September 29, 2008 to be considered
in the formulation of a final rule.
ADDRESSES: Submit comments identified by GSAR Case 2006-G520 by any of
the following methods:
Regulations.gov: http://www.regulations.gov.
Submit comments via the Federal eRulemaking portal by inputting
``GSAR Case 2006-G520'' under the heading ``Comment or Submission''.
Select the link ``Send a Comment or Submission'' that corresponds with
GSAR Case 2006-G520. Follow the instructions provided to complete the
``Public Comment and Submission Form''. Please include your name,
company name (if any), and ``GSAR Case 2006-G520'' on your attached
document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (VPR), 1800 F Street, NW, Room 4041, ATTN: Laurieann
Duarte, Washington, DC 20405.
Instructions: Please submit comments only and cite GSAR Case 2006-
G520 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.
FOR FURTHER INFORMATION CONTACT For clarification of content, contact
Ms. Meredith Murphy at (202) 208-6925. For information pertaining to
the status or publication schedules, contact the Regulatory Secretariat
(VPR), Room 4041, GS Building, Washington, DC 20405, (202) 501-4755.
Please cite GSAR Case 2006-G520.
SUPPLEMENTARY INFORMATION:
A. Background
The GSAR Rewrite Project
GSA published an Advance Notice of Proposed Rulemaking (ANPR) in
the Federal Register at 71 FR 7910, February 15, 2006, with request for
comments because GSA was beginning the review and update of the General
Services Administration Acquisition Regulation (GSAR).
This GSAR rewrite has--
Considered comments received from the ANPR, published
February 15, 2006.
Changed ``you'' to ``contracting officer.''
Maintained consistency with the FAR, but eliminated
duplication.
Revised GSAR sections that are out of date, or which
imposed inappropriate burdens on the Government or contractors,
especially small businesses.
Streamlined and simplified wherever possible.
In addition, GSA has recently reorganized into two (2), rather than
three (3), services. Therefore, the reorganization of the Federal
Supply Service (FSS) and the Federal Technology Service (FTS) into the
Federal Acquisition Service (FAS) was considered in the rewrite
initiative.
The Rewrite of Part 525
Subpart 525.3, Balance of Payment Programs, is proposed for
deletion because FAR Case 99-616, dated November 20, 2006, removed the
corresponding FAR coverage. Subpart 525.5, Evaluating Foreign Offers--
Supply Contracts, and the related clause at 552.225-70, are proposed
for deletion because they were replaced on January 25, 2007, by GSA
Acquisition Letter V-07-02 with more current Berry Amendment coverage
at Subpart 525.10, Additional Foreign Acquisition Regulations. Subpart
525.6, Trade Sanctions, is proposed for deletion because Federal
Acquisition Circular 2005-09, dated April 2006, removed the
corresponding FAR coverage. Subpart 552.3, Provision and Clause
Matrices, is being revised to delete reference to the clause at
552.225-70 from the Matrix.
Discussion of Comments
As a result of the ANPR, GSA received three comments pertaining to
GSAR Part 525.
Comment 1: One commenter suggested revising the GSAR to provide an
exception to the Trade Agreements Act (and certain other domestic
source requirements) for commercial off-the-shelf items.
Response: The language of the statute does not authorize such
exceptions to be made at the agency level.
Comment 2: The second commenter stressed that, in the medical
world, there are numerous products that either are already manufactured
off-shore in non-designated countries or soon will be according to
industry via market research. When these types of medical items begin
to be produced off-shore, historically all competitors end up moving
production shortly thereafter because of pricing pressures, and none of
them or any future competitors initiate production in an acceptable
country under the T.A.A. With this in mind, it is felt that exemptions
to the T.A.A. via a non-availability determination should be allowed.
The contracting officer making the non-availability determination (with
approval from the appropriate individual) can continually monitor the
availability of FedBizOpps sources sought announcements, SBA Pro-Net
searches and possible other methods.
Response: The statute authorizes a head of the contracting activity
to make a non-availability determination on an individual item basis,
and this authority is specifically addressed at 525.103(d). The
procedure for requesting that an item be added to the List of
Nonavailable Articles is at FAR 25.104.
Comment 3: The third commenter suggests that GSA consider revising
the GSAR to implement supplemental guidance to clarify the application
of the Buy American Act (``BAA''), 41 U.S.C. 10a-10d and Executive
order 10582, December 17, 1954, and the Trade Agreements Act (``TAA''),
19 U.S.C. 2501 et seq., to FSS and GWAC Contracts. Contractors seek
consistency in treatment under the law and applicable regulations.
Knowing when the BAA and TAA apply and how their respective tests will
be applied to products and services is of great importance to
contractors. Contractors selling commercial items to the Federal
Government generally do not manufacture their products based on the
origin of supplies or manufacturing locations. The Government, however,
requires such contractors to consider these things when they contract
to sell commercial products to the Federal Government. Making it easier
for contractors to know and understand how the rules will be applied
can only improve the procurement system. This is particularly important
because an inaccurate certification can result in loss of monies,
contracts, serious civil and criminal penalties, or both. Currently
there is uncertainty as to whether the BAA or TAA applies to a
procurement. The TAA dollar value applicability threshold, which is set
out in FAR 25.402, can vary according to whether the country of origin
is a Free Trade Agreement (``FTA'') country and whether the contract is
for supplies, services or construction.
The commenter also stated that applicability of the Berry Amendment
to orders placed under Schedule contracts was not clear.
Response: The statute specifically makes the law (TAA or BAA)
applicable to the total value of the acquisition, which the GSA Office
of General Counsel has interpreted as meaning the total contract value,
not the value of the
[[Page 44210]]
individual task order. Therefore, the TAA applies to each order issued
under the Schedule contract.
GSA issues Schedules for use by many Government agencies. By
regulation, restrictions (such as the Berry Amendment) that are not
applicable to all agencies are required to be placed in individual task
orders to which they do apply, not in the basic Schedule contract.
The commenter correctly states that GSA is not subject to the Berry
Amendment. However, the statute is applicable to purchases ``made with
DOD appropriated funds,'' without regard to which agency places the
order. GSA Acquisition Letter V-07-02, Implementation of Berry
Amendment Contracting Requirements for Assisted Acquisitions Using DOD
Funds, dated January 25, 2007, requires the contracting officer for
individual task orders to review the requirement and source of funds
for Berry Amendment applicability and include the appropriate DFARS
clause in the resulting procurement. In other words, any task order
issued using DoD appropriated funds must include the Berry Amendment.
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.
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 there are no substantive changes. 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 525 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-G520), 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 525 and 552
Government procurement.
Dated: July 24, 2008.
Al Matera,
Director, Office of Acquisition Policy.
Therefore, GSA proposes to amend 48 CFR parts 525 and 552 as set
forth below:
1. The authority citation for 48 CFR parts 525 and 552 is revised
to read as follows:
Authority: 40 U.S.C. 121(c).
PART 525--FOREIGN ACQUISITION
Subpart 525.3 [Removed]
2. Subpart 525.3 is removed.
Subpart 525.5 [Removed]
3. Subpart 525.5 is removed.
Subpart 525.11 [Removed]
4. Subpart 525.11 is removed.
PART 552-SOLICITATION PROVISIONS AND CONTRACT CLAUSES
552.225-70 [Removed]
5. Section 552.225-70 is removed.
[FR Doc. E8-17373 Filed 7-29-08; 8:45 am]
BILLING CODE 6820-61-S