[Federal Register: May 5, 2009 (Volume 74, Number 85)]
[Rules and Regulations]
[Page 20605-20606]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05my09-16]
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GENERAL SERVICES ADMINISTRATION
48 CFR Parts 537 and 552
[GSAR Amendment 2009-03; GSAR Case 2008-G510 (Change 29)Docket 2008-
0007; Sequence 4]
RIN 3090-AI54
General Services Administration Acquisition Regulation; GSAR Case
2008-G510; Rewrite of GSAR Part 537, Service Contracting
AGENCIES: General Services Administration (GSA), Office of the Chief
Acquisition Officer.
ACTION: Final rule.
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SUMMARY: The General Services Administration (GSA) is amending the
General Services Administration Acquisition Regulation (GSAR) by
revising the text addressing service contracting. 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 Federal Acquisition Regulation (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 GSAR as well as internal agency acquisition policy.
DATES: Effective Date: June 4, 2009.
FOR FURTHER INFORMATION CONTACT For clarification of content, contact
Michael O. Jackson, Procurement Analyst, at (202) 208-4949. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat (VPR), Room 4041, GS Building, Washington, DC,
20405, (202) 501-4755. Please cite Amendment 2009-03, GSAR case 2008-
G510 (Change 29).
SUPPLEMENTARY INFORMATION:
A. Background
An Advance Notice of Proposed Rulemaking (ANPR) with request for
comments on all parts of the GSAM was published in the Federal Register
at 71 FR 7910 on February 15, 2006. No comments were received on Part
537. However, internal review comments have been incorporated as
appropriate. A proposed rule for the regulatory portion of the GSAM was
published in the Federal Register at 73 FR 32276 on June 6, 2008. In
addition, GSA Acquisition Letter V-05-11, entitled, ``Exclusion of
Leases or Leasehold Interest in Real Property from the Use of
Performance-Based Contracting,'' dated June 6, 2005, was incorporated
into Subpart 537.102-70. The public comment period for the proposed
rule on GSAR Part 537 closed on August 5, 2008, and four (4) comments
were received from one (1) commenter.
The Rewrite of Part 537
This final rule contains the revisions made to GSAR Subpart 537,
Service Contracting. The rule revises GSAR Subpart 537 to address the
text at GSAR 537.101, Definitions; GSAR 537.110 Solicitation provisions
and contract clauses; provision GSAR 552.237-70, Qualifications of
Offerors; and clause GSAR 552.237-73, Restriction on Disclosure of
Information. The language in GSAR 537.101, Definitions, is removed from
inclusion in the GSAR. This language clarifies the definition for
``contracts for building services'' for contracting officers;
therefore, this language is being incorporated as non-regulatory GSAM
language. In addition, because these definitions may have impact beyond
the agency, GSAM 537.201, Definitions, is being made regulatory with
deletions in the definitions where the GSAM language was redundant with
the FAR. GSAR clauses 552.237-71, Qualifications of Employees and
552.237-72, Prohibition Regarding ``Quasi-Military Armed Forces'' are
retained with no changes, except minor edits to correct clause
prescription references.
GSAR 537.102-70 was written to incorporate the policy that GSA
contracting activities are not required to use performance-based
acquisition (PBA) methods for leases and leasehold interests in real
property from GSA Acquisition Letter V-05-11, dated June 6, 2005.
Discussion of Comments
A proposed rule was published in the Federal Register at 73 FR
32276 on June 6, 2008. The comment period closed August 5, 2008, and
four (4) comments were received from one (1) commenter. Also, GSA
Acquisition Letter V-05-11, published on June 6, 2005, was incorporated
in the final rule.
Comment 1: One commenter responded that GSAM 552.237-70 clause is
misleading in that it refers to ``qualifications'' within the same
context that it discusses determinations of ``responsibility'' which
the commenter believes are two totally different requirements with
separate applications and procedures. The commenter believes this
clause is inappropriate for the reasons cited below.
The issues of ``financial resources'' and ``performance
capability'' both fall under FAR 9.1's responsibility standards.
Conversely, ``qualifications'' go to the ``quality'' of the service
that must ``be addressed in every source selection through
consideration of one or more non-cost evaluation factors such as past
performance, compliance with solicitation requirements, technical
excellence, management capability, personnel qualifications, and prior
experience'' and references FAR 15.304(c)(2) and FAR 15.202(a).
Consequently, factors dealing with ``comparable contracts,''
``experience,'' and ``competency in performing
comparable[hellip]contracts'' fall under the realm of quality or
qualifications as outlined in FAR 15 rather than FAR 9.1 responsibility
standards. Qualifications must be ``evaluated'' as part of the
technical factors, and related standards/ criteria that are outlined in
the RFP/solicitation.
Since ``qualifications'' must be specifically addressed in
the RFP, as required under FAR 15.3's Source Selection procedures, and
responsibility standards are already addressed in FAR 9.1, the
commenter recommends GSA delete this clause on the basis that it is
inappropriate, ambiguous, impractical, and unnecessary.
If the clause is retained, the commenter questions its
applicability only to building service contracts. The commenter's
position is that qualifications and responsibility matters could apply
to all contracts including supply, construction, A-E, as well as all
professional services. If retained, the commenter recommends that GSA
consider moving the clause under GSAM 509.2 to align with FAR 9.2's
``Qualifications Requirements.''
Response: Nonconcur. The information summarizes the requirements
for the performance of building service contracts that is not found in
other parts of the FAR and GSAM. The GSA position is that the FAR and
GSAM coverage is adequate for responsibility and qualifications
matters.
[[Page 20606]]
Comment 2: The commenter stated that FAR 9.1 deals with
``responsibility'' requirements that apply to all ``prospective
contractors'' including sealed bid competitors. However, competitors'
qualifications cannot be considered in a sealed bid procurement which
is limited to ``only price and the price-related factors'' per FAR
14.408-1(a). Pursuant to FAR 14.103-2(d), ``An award is made to the
responsible bidder (see 9.1)''[hellip]Also see FAR 14.408-2(a) which
says, ``The contracting officer shall determine that a prospective
contractor is responsible (per FAR 9.1)[hellip]'' Therefore, GSA should
consider revising the GSAM/GSAR 537.110(a) prescription to prohibit its
use, for qualifying firms, on sealed bid procurements.
Response: Nonconcur. Contracting activities are encouraged not to
use sealed bidding procedures for building service contracts, however,
some activities still use the sealed bidding procedures for smaller
building service contract actions.
Comment 3: The commenter refers to comments covering GSAM 509 which
allows Contracting Officers to use the GSA Form 527 to ``furnish a
statement of its financial resources,'' yet fails to require
Contracting Officers to document any analytical report to reflect
review of same with conclusory findings.
Response: This comment is outside the scope of this GSAR case.
Comment 4: Commenter stated that they considered it a ``reporting
burden'' for GSA to not allow comments to be submitted electronically
on this notice.
Response: Comments on this case were accepted electronically.
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 final 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 changes in the final rule are editorial in
nature, e.g., changing a definition from regulatory to non-regulatory,
adding the new name of the Javits-Wagner-O'Day (JWOD) program of
Ability One, eliminating redundancy with regard to GSAR and FAR
definitions at GSAR 537.201 and making minor edits to GSAR 552.237-70
and 552.237-73.
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
3090-0007.
List of Subjects in 48 CFR Parts 537 and 552
Government procurement.
Dated: March 11, 2009
Rodney P. Lantier,
Acting, Senior Procurement Executive, Office of the Chief Acquisition
Officer, General Services Administration.
0
Therefore, GSA amends 48 CFR parts 537 and 552 as set forth below:
PART 537--SERVICE CONTRACTING
0
1. The authority citation for 48 CFR part 537 is revised to read as
follows:
Authority: 40 U.S.C. 121(c).
537.101 [Removed]
0
2. Remove section 537.101.
537.110 [Amended]
0
3. Amend section 537.110 by removing from the introductory text of
paragraph (a) ``initiated under'' and adding ``initiated with Ability
One under'' in its place.
0
4. Add section 537.201 to read as follows:
537.201 Definitions.
As used in this subpart--
Evaluation or analysis of a proposal means proposal evaluation as
described in FAR 15.305. It includes: Cost or price evaluation using
cost or price analysis, as defined in FAR 15.404.
Proposal means a proposal submitted for an initial contract award.
(See FAR 37.203(d)). It does not include proposals submitted after
contract award, such as value engineering proposals, proposals related
to contract modifications, claims, or other contract administration
actions.
Readily available means that employees with the requisite training
and capability are employed by the agency, capable of handling
additional work relating to other duties as assigned by management, and
that the travel and other costs associated with using covered personnel
does not exceed the projected cost of a contract for evaluation and
analysis services.
Requisite training and capability means training and capability
necessary to successfully perform the task or contract at issue in the
time and in the manner required. It may include relevant experience,
recent performance of work of similar size and scope, specific training
and other factors that the contracting officer determines are necessary
to the successful performance of the task or contract at issue.
PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
5. The authority citation for 48 CFR part 552 continues to read as
follows:
Authority: 40 U.S.C. 121(c).
0
6. Amend section 552.237-70 by revising the date of the provision and
the second sentence in paragraph (a) to read as follows:
552.237-70 Qualifications of Offerors.
* * * * *
QUALIFICATIONS OF OFFERORS (May 2009)
(a) * * * To determine an Offeror's qualifications, the Offeror may
be requested to furnish a narrative statement listing comparable
contracts which it has performed; a general history of its operating
organization; and its complete experience. * * *
* * * * *
0
7. Amend section 552.237-71 by revising the introductory paragraph to
read as follows:
552.237-71 Qualifications of Employees.
As prescribed in 537.110(a), insert the following clause:
* * * * *
0
8. Amend section 552.237-72 by revising the introductory paragraph to
read as follows:
552.237-72 Prohibition Regarding ``Quasi-Military Armed Forces.''
As prescribed in 537.110(b), insert the following clause:
* * * * *
0
9. Amend section 552.237-73 by revising the date of the clause and
paragraph (b) to read as follows:
552.237-73 Restriction on Disclosure of Information.
* * * * *
RESTRICTION ON DISCLOSURE OF INFORMATION (May 2009)
* * * * *
(b) The Contractor shall not disclose any information concerning
the work under this contract to any persons or entity unless the
Contractor obtains prior written approval from the Contracting Officer.
* * * * *
[FR Doc. E9-10259 Filed 5-4-09; 8:45 am]
BILLING CODE 6820-61-S