[Federal Register Volume 73, Number 151 (Tuesday, August 5, 2008)]
[Proposed Rules]
[Pages 45379-45383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-17902]
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GENERAL SERVICES ADMINISTRATION
48 CFR Parts 546 and 552
[GSAR Case 2008-G514; Docket 2008-0007; Sequence 14]
RIN 3090-AI69
General Services Acquisition Regulation; GSAR Case 2008-G514;
Rewrite of GSAR Part 546, Quality Assurance
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 that provides requirements for quality assurance.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat on or before October 6, 2008 to be considered in
the formulation of a final rule.
ADDRESSES: Submit comments identified by GSAR Case 2008-G514 by any of
the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments
[[Page 45380]]
via the Federal eRulemaking portal by inputting ``GSAR Case 2008-G514''
under the heading ``Comment or Submission''. Select the link ``Send a
Comment or Submission'' that corresponds with GSAR Case 2008-G51.
Follow the instructions provided to complete the ``Public Comment and
Submission Form''. Please include your name, company name (if any), and
``GSAR Case 2008-G514'' 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 2008-
G514 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. Jeritta Parnell at (202) 501-4082. 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 2008-G514.
SUPPLEMENTARY INFORMATION:
A. Background
The General Services Administration (GSA) is amending the General
Services Administration Acquisition Regulation (GSAR) to revise GSAR
Part 546, Quality Assurance. 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 so
as to maintain consistency with the FAR and implement streamlined and
innovative acquisition procedures that contractors, offerors, and GSA
contracting personnel can use 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, GSA will publish it in the Federal Register.
This proposed rule revises GSAR 546 as follows:
GSAR 546.302-70, Source inspection by Quality Approved Manufacturer
for fixed-price supply contracts, is revised to include applicability
to certain programs, i.e., stock, special order program, wildfire. The
subsection is revised to include reference to FAR 52.246-2, Inspection
of Supplies--Fixed Price.
GSAR 546.302-71, Source Inspection, is retained with no revisions.
GSAR 546.302-72, Destination Inspection, is added to prescribe the
clause at 552.246-78, Inspection at Destination.
The language in 546.312, Construction contracts, that prescribes
the clause at 552.246-72, Final Inspection and Tests, is deleted.
The language in 546.708, Warranties of data, is revised to place
emphasis on the role of the contracting officer.
The language in 546.710, Contract clause, is revised to add the
clause at 552.246-77, Additional Contract Warranty Provisions for
Supplies of a Noncomplex Nature. This clause is used when the FAR
clause at 52.246-17, Warranty of Supplies of a Noncomplex Nature, is
included in solicitations and contracts. The prescriptive language in
paragraphs (b), (c), and (d) is deleted. The clauses prescribed in
paragraphs (b), (c), and (d) are being deleted.
The clause at 552.246-17, Warranty of Supplies of a Noncomplex
Nature, is being deleted as it unnecessarily repeats, paraphrases, or
otherwise restates material contained in the FAR. A new clause 552.246-
77, Additional Contract Warranty Provisions for Supplies of a
Noncomplex Nature, is added to provide for GSA unique rights and
remedies.
The clause at 552.246.70, Source Inspection by Quality Approved
Manufacturer, is revised to edit and clarify existing clause language.
The clause at 552.246-71, Source Inspection by Government, is
retained.
The clause at 552.246-72, Final Inspection and Tests, is being
deleted. The FAR provides sufficient guidance.
The clause at 552.246-73, Warranty Multiple Award Schedule, is
being relocated to GSAR Part 538.
The clause at 552.246-75, Guarantees, is being deleted. The FAR
provides sufficient guidance.
The clause at 552.246-76, Pesticides, is being deleted. This clause
was determined to be unnecessary for inclusion in the GSAR.
The clause at 552.246-78, Inspection at Destination, is being added
to provide for inspection by Government personnel at destination.
Discussion of Comments
There were no comments received in response to the ``Advanced
Notice of Proposed Rulemaking'' pertaining to this GSAR Part.
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 the revisions are not considered
substantive. The revisions delete obsolete coverage, clarify existing
coverage, and edit current language. 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 546 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 2008-G514), in all correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does apply; however, these changes to
the GSAR do not impose additional information collection requirements
to the paperwork burden previously approved under OMB Control Number
3090-0027.
List of Subjects in 48 CFR Parts 546 and 552
Government procurement.
Dated: July 29, 2008.
Al Matera,
Director, Office of Acquisition Policy.
Therefore, GSA proposes to amend 48 CFR parts 546 and 552 as set
forth below:
1. The authority citation for 48 CFR parts 546 and 552 continues to
read as follows:
Authority: 40 U.S.C. 121(c).
PART 546--QUALITY ASSURANCE
2. Revise section 546.302-70 to read as follows:
546.302-70 Source inspection by Quality Approved Manufacturer for
fixed-price supply contracts.
(a) For solicitations issued and contracts awarded by FAS that will
exceed the simplified acquisition threshold and include the clause at
52.246-2, Inspection of Supplies--Fixed-Price--
[[Page 45381]]
(1) The contracting officer shall insert the clause at 552.246-70,
Source Inspection by Quality Approved Manufacturer, in solicitations
and contracts that provide for source inspection for the Stock and
Special Order Programs; and
(2) The contracting officer may authorize inspection and testing at
manufacturing plants or other facilities located outside the United
States, Puerto Rico, or the U.S. Virgin Islands, under paragraph (a)(1)
of the clause at 552.246-70 under any of the following circumstances
after coordinating the authorization with QVOC and documenting the
authorization in the file:
(i) Inspection services are available from another Federal agency
with primary inspection responsibility in the geographic area.
(ii) An inspection interchange agreement exists with another agency
for inspection at a contractor's plant.
(iii) Other considerations will ensure more economical and
effective inspection consistent with the Government's interest.
(b) When the estimated value of the acquisition is below the
simplified acquisition threshold and will include the clause at 52.246-
2, Inspection of Supplies--Fixed-Price, insert the clause at 552.246-
70, Source Inspection by Quality Approved Manufacturer, only--
(1) In solicitations and contracts that support the Wildfire
program; and
(2) In contracts when a pattern of acquisitions demonstrates an
ongoing relationship with the contractor.
546.302-71 [Amended]
3. Amend section 546.302-71 by removing ``FSS'' and adding ``FAS''
in its place.
4. Add section 546.302-72 to read as follows:
546.302-72 Destination inspection.
The contracting officer shall include the clause at 552.246-78,
Inspection at Destination, in supply contracts that require inspection
at destination.
546.312 [Removed]
5. Remove section 546.312.
Subpart 546.4 [Removed]
6. Remove Subpart 546.4.
7. Revise section 546.708 to read as follows:
546.708 Warranties of data.
(a) The contracting officer shall use warranties of data only when
both of the following conditions are applicable:
(1) Use of a warranty is in the Government's interest and is
documented.
(2) The contracting director concurs with the decision.
(b) The contracting officer shall consult with the technical or
specification manager responsible for developing any warranties of
data.
8. Revise section 546.710 to read as follows:
546.710 Contract clause.
The contracting office shall insert the clause at 552.246--77,
Additional Contract Warranty Provisions for Supplies of a Noncomplex
Nature, when using the clause at 52.246-17 in solicitations and
contracts.
PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
552.246-17 [Removed]
9. Remove section 552.246-17.
10. Revise section 552.246-70 to read as follows:
552.246-70 Source Inspection by Quality Approved Manufacturer.
As prescribed in 546.302--70, insert the following clause:
Source Inspection By Quality Approved Manufacturer (Date)
(a) Inspection system and inspection of facilities. (1) The
inspection system maintained by the Contractor under the Inspection of
Supplies--Fixed Price clause (FAR 52.246--2) of this contract shall be
maintained throughout the contract period. Unless otherwise authorized
in writing by the Contracting Officer, the Contractor shall comply with
all requirements of editions in effect on the date of the solicitation
of either Federal Standard 368 or the International Organization for
Standardization (ISO) Standard 9001:2000 (Quality Management Systems--
Requirements). A documented description of the inspection system shall
be made available to the Government before contract award. At the sole
discretion of the Contracting Officer, he/she may authorize in writing
exceptions to the quality assurance standards identified above. The
Contractor shall immediately notify the Administrative Contracting
Officer (ACO) of any changes made in the inspection system during the
contract period. As used herein, the term ``inspection system'' means
the Contractor's own facility or any other facility acceptable to the
Government that will be used to perform inspections or tests of
materials and components before incorporation into end articles and for
inspection of such end articles before shipment. When the manufacturing
plant is located outside of the United States, the Contractor shall
arrange delivery of the items from a plant or warehouse located in the
United States (including Puerto Rico and the U.S. Virgin Islands)
equipped to perform all inspections and tests required by the contract
or specifications to evidence conformance therewith, or shall arrange
with a testing laboratory or other facility in the United States,
acceptable to the Government, to perform the required inspections and
tests.
(2) In addition to the requirements in Federal Standard 368, ISO
9001:2000 or as otherwise approved by the Government, records shall
include the date inspection and testing were performed. These records
shall be available for--
(i) 3 years after final payment; or
(ii) 4 years from the end of the Contractor's fiscal year in which
the record was created, whichever period expires first.
(3) Offerors are required to specify, in the space provided
elsewhere in this solicitation, the name and address of each
manufacturing plant or other facility where supplies will be available
for inspection, indicating the item number(s) to which each applies.
(4) The Contractor shall provide the Administrative Contracting
Officer (ACO) with the name of the individual and an alternate
responsible for the inspection system. In the event that the designated
individual(s) becomes unavailable to oversee the inspection system, the
Contractor, within 10 calendar days of such event, shall provide the
ACO with the names of the replacement individual(s).
(b) Inspection by the Contractor. The Contractor is required to
demonstrate that the supplies in the shipment have been subject to had
have passed all inspections and tests required by the contract and meet
the requirements of the contract.
(c) Inspection by Government personnel. (1) Although the Government
will normally rely upon the Contractor's representation as to the
quality of supplies shipped, it reserves the right under the Inspection
of Supplies--Fixed Price clause to inspect and test all supplies called
for by this contract, before acceptance, at all times and places,
including the point of manufacture. When the Government notifies the
Contractor of its intent to inspect supplies before shipment, the
Contractor shall notify or arrange for subcontractors to notify the
designated GSA quality assurance office 7 workdays before the date when
supplies will be ready for inspection. Shipment shall not be made until
inspection by
[[Page 45382]]
the Government is completed and shipment is authorized by the
Government.
(2) The offeror shall indicate, in the spaces provided below the
location(s) at which the supplies will be inspected or made available
for inspection.
Inspection Points
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Item No(s). Name of Manufacturer Name, Address (Including County), and Telephone Number
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---------- ---------------- ---------------------- ------------
---------- ---------------- ---------------------- ------------
---------- ---------------- ---------------------- ------------
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NOTE: If additional space is needed, the offeror may furnish the
requested information by an attachment to the offer.
(3) During the contract period, a Government representative may
periodically select samples of supplies produced under this contract
for Government verification, inspection, and testing. Samples selected
for testing will be disposed of as follows: Samples from an accepted
lot, not damaged in the testing process, will be returned promptly to
the Contractor after completion of tests. Samples damaged in the
testing process will be disposed of as requested by the Contractor.
Samples from a rejected lot will be returned to the Contractor or
disposed of in a time and manner agreeable to both the Contractor and
the Government.
(d) Quality deficiencies. (1) Notwithstanding any other clause of
this contract concerning the conclusiveness of acceptance by the
Government, any supplies or production lots shipped under this contract
found to be defective in material or workmanship, or otherwise not in
conformity with the requirements of this contract within a period of --
------[star17]-------- months after acceptance shall, at the
Government's option, be replaced, repaired, or otherwise corrected by
the Contractor at no cost to the Government within 30 calendar days (or
such longer period as the Contracting Officer may authorize in writing)
after receipt of notice to replace or correct. The Contractor shall
remove, at its own expense, supplies rejected or required to be
replaced, repaired, or corrected. When the nature of the defect affects
an entire batch or lot of supplies, and the Contracting Officer
determines that correction can best be accomplished by retaining the
nonconforming supplies, and reducing the contract price by an equitable
amount under the circumstances, then the equitable price adjustment
shall apply to the entire batch or lot of supplies from which the
nonconforming item was taken.
(2) The Contractor may be issued a Quality Deficiency Notice (QDN)
if--
(i) Supplies in process, shipped, or awaiting shipment to fill
Government orders are found not to comply with contract requirements;
or
(ii) Deficiencies in either plant quality or process controls are
found. Upon receipt of a QDN, the Contractor shall take immediate
corrective action and shall suspend shipment of the supplies covered by
the QDN until such time as corrective action has been completed. The
Contractor shall notify the Government representative, within 5
workdays, of the action plan or the corrective action taken. The
Government may elect to verify the corrective action at the Contractor
location(s). Shipments of nonconforming supplies will be returned at
the Contractor's expense and may constitute cause for termination of
the contract. Delays due to the insurance of a QDN do not constitute
excusable delay under the default clause of this contract. Failure to
complete corrective action in a timely manner may result in termination
of the contract.
(3) This contract may be terminated for default if subsequent
Government inspection discloses that plant quality or process controls
are not being maintained, supplies that do not meet the requirements of
the contract are being shipped, or if the contractor fails to comply
with any other requirement of this clause.
(e) Additional cost for inspection and testing. The Contractor
shall be charged for any additional cost of inspection/testing or
reinspecting/retesting supplies for the reasons stated in paragraph (e)
of FAR 52.246--2, Inspection of Supplies--Fixed Price. When inspection
or testing is performed by or under the direction of GSA, charges will
be at the rate of $------[star17]------ per man-hour or fraction
thereof if the inspection is at a GSA distribution center; $------
[star17]------ per man-hour or fraction thereof, plus travel costs
incurred, if the inspection is at any other location; and $------
[star17]------ per man-hour or fraction thereof for laboratory testing,
except that when a testing facility other than a GSA laboratory
performs all or part of the required tests, the Contractor shall be
assessed the actual cost incurred by the Government as a result of
testing at such facility. When inspection is performed by or under the
direction of any agency other than GSA, the charges indicated above may
be used, or the agency may assess the actual cost of performing the
inspection and testing.
(f) Responsibility for rejected supplies. When the Contractor fails
to remove or provide instructions for the removal of rejected supplies
under paragraph (d) of this clause, pursuant to the Contracting
Officer's instructions, the Contractor shall be liable for all costs
incurred by the Government in taking such measures as are expedient to
avoid unnecessary loss to the Contractor. In addition to the remedies
provided in FAR 52.246--2, supplies may be--
(1) Stored and charged against the Contractor's account;
(2) Reshipped to the Contractor at its expense (any additional
expense incurred by the Government or the freight carrier caused by the
refusal of the Contractor to accept their return shall also be charged
against the Contractor's account);
(3) Sold to the highest bidder on the open market and the proceeds
applied against the accumulated storage and other costs, including the
cost of the sale; or
(4) Otherwise disposed of by the Government.
(g) Subcontracting requirements. The Contractor shall insert in any
subcontracts the inspection or testing provisions set forth in
paragraphs (a) through (d) of this clause and the Inspection of
Supplies--Fixed Price clause of this contract. The Contractor shall be
responsible for compliance by any subcontractor with the provisions set
forth in paragraphs (a) through (d) of this clause and the Inspection
of Supplies--Fixed Price clause.
(End of clause)
[[Page 45383]]
[star17]Normally insert 12 months as the period during which
defective or otherwise nonconforming supplies must be replaced.
However, when the supplies being bought have a shelf life of less than
1 year, you should use the shelf-life period, or in the instance where
you reasonably expect a longer period to be available, you should use
the longer period.
[star17][star17]The rates to be inserted are established by the
Commissioner of the Federal Acquisition Service or a designee.
552.246-71 [Amended]
11. Amend section 552.246-71 by--
a. Revising the date of the clause to read ``(Date)'';
b. Removing from paragraph (c)(3) ``Virgin Islands'' and adding
``U.S. Virgin Islands'' in its place; and
c. Removing from the end of the section, at the footnote,
``Supply'' and adding ``Acquisition'' in its place.
552.246-72 through 552.246-76 [Reserved]
12. Remove and reserve sections 552.246-72 through 552.246-76.
13. Add sections 552.246-77 and 552.246-78 to read as follows:
552.246-77 Additional Contract Warranty Provisions for Supplies of a
Noncomplex Nature.
As prescribed in 546.710(a), insert the following clause in
solicitations and contracts that include FAR 52.246-17, Warranty of
Supplies of a Noncomplex Nature.
Additional Contract Warranty Provisions For Supplies of a Noncomplex
Nature (Date)
(a) Definition. Correction, as used in this clause, means the
elimination of a defect.
(b) Contractor's obligations. When return, correction, or
replacement is required, the Contractor shall be responsible for all
costs attendant to the return, correction, or replacement of the
nonconforming supplies. Any removal in connection with the above shall
be done by the Contractor at its expense.
(c) Remedies available to the Government. When the nature of the
defect in the nonconforming item is such that the defect affects an
entire batch or lot of material, then the equitable price adjustment
shall apply to the entire batch or lot of material from which the
nonconforming item was taken.
(End of clause)
552.246-78 Inspection at Destination.
As prescribed in 546.302-72 insert the following clause:
INSPECTION AT DESTINATION (DATE)
Inspection of all purchases under this contract will be made at
destination by an authorized government representative.
(End of clause)
[FR Doc. E8-17902 Filed 8-4-08; 8:45 am]
BILLING CODE 6820-61-S