[Federal Register Volume 74, Number 179 (Thursday, September 17, 2009)]
[Rules and Regulations]
[Pages 47737-47740]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-22209]
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GENERAL SERVICES ADMINISTRATION
48 CFR Parts 501, 514, and 552
[GSAR Amendment 2009-11; GSAR Case 2008-G505 (Change 39); Docket 2008-
0007; Sequence 20]
RIN 3090-AI73
General Services Acquisition Regulation; GSAR Case 2008-G505;
Rewrite of GSAR Part 514, Sealed Bidding
AGENCY: Office of Acquisition Policy, General Services Administration
(GSA).
ACTION: Final rule.
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SUMMARY: The General Services Administration (GSA) is amending the GSA
Acquisition Regulation (GSAR) by revising the sections of GSAR Part 514
that provide requirements for sealed bidding. This rule is a result of
the GSA 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, bidders, 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: October 19, 2009.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Mr. Michael O. Jackson at (202) 208-4949. For information pertaining to
the status or publication schedules, contact the Regulatory Secretariat
(VPR), 1800 F Street, NW., Room 4041, Washington, DC 20405, (202) 501-
4755. Please cite GSAR Case 2008-G505 (Change 39), in all
correspondence.
SUPPLEMENTARY INFORMATION:
A. Background
The GSA is amending the GSAR to revise sections of GSAR Part 514
that provide requirements for sealed bidding.
This final rule is a result of the GSA 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, bidders, 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.
The 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 rule covers the rewrite of GSAR Part 514. The specific changes
are as follows:
501.106 OMB Approval under the Paperwork Reduction Act.
Added OMB Control No. 3090-0162 as a cross reference for
514.201-1.
514.201-2 Part I--The Schedule.
Changed paragraph (a) from ``When you'' to ``When using''.
Also in paragraph (a) changed ``which'' to ``that'' and added all three
FAR clauses for Prompt Payment (52.232-25, 52.232-26, and 52.232-27).
Changed the word ``offer'' to ``bid''.
Changed paragraph (b) from ``When you use'' to ``When
using'' to clarify the reference to ``you'' and added a reference to
the Standard Form 1449 as an example that this form can also be used.
514.201-6 Solicitation provisions.
Changed ``When you'' to ``When considering'' to delete the
reference to the word ``you''.
Changed ``All or None Offers'' to ``All or None Bids''.
Deleted the reference for Alternate I because the
alternate is being proposed for deletion because it is not consistent
with the intention of the basic clause.
514.201-7 Contract clauses.
In the old paragraph (a) changed ``you'' to ``The
contracting officer''.
Deleted paragraph (b), Examination of Records. The clause
does not provide basic audit rights that are in addition to the FAR
clauses at 52.215-2, Audit and Records--Negotiation and 52.214-26,
Audit and Records--Sealed Bidding. And as opposed to the GSA clause,
the FAR clause is specific to sealed bids. Further, the GSA clause
grants to the agency rights to audit subcontractors that are in excess
of those granted by the FAR and the statute.
514.202-4 Bid samples.
Renamed paragraphs (a) and (b) to be more consistent with
the FAR.
Also in paragraphs (a) and (b) restructured the language
to remove the word ``you'' and replaced with contracting officer.
Clarified the language to state who must take physical
custody of bid samples.
Deleted paragraph (c) because it is redundant with FAR
14.202-4(d).
514.202-5 Descriptive Literature.
Added a new GSAR section in order to address the
requirements of FAR 14.202-5(c).
514.270-1 Definition. Deleted hyphenation in ``separately-priced''.
514.270-2 Justification for use.
Inserted ``the contracting officer should'' in paragraph
(b) and made last sentence of paragraph (3) a new number paragraph (4)
and renumbered old paragraphs (4) and (5) to paragraphs (5) and (6),
respectively.
Added ``the contracting officer should'' to replace the
understood ``you'' and deleted ``Do'' in paragraph (c).
514.270-3 Evaluation factors for award.
Edited to avoid either using the passive voice or
repeating ``the contracting officer''.
514.270-4 Grouping line items for aggregate award.
In paragraph (a) the title ``Type of contract'' was
changed to one that is more descriptive of the substance of the
paragraph; type of contract refers to Part 16 contract types.
[[Page 47738]]
In paragraph (b) changed the ``when you group'' to ``when
grouping'' and in paragraph (d)(3)(i) changed ``It can cause you to
lose'' to ``It can cause the loss of''.
In paragraph (d)(2) changed ``respond'' to ``responded''.
514.270-6 Guidelines for using the weight factors method.
In paragraph (a) changed ``you have'' to ``there are''.
In paragraph (d) changed ``You may reduce estimated
quantities'' to ``Estimated quantities may be reduced''.
In paragraph (e) deleted the ``you'' in the first
sentence.
514.270-7 Guidelines for using the price list method.
In paragraph (a) changed ``you need to make'' to
``making''.
In paragraph (b) changed ``When you use'' to ``using''.
In paragraph (c) changed ``You may develop price lists''
to ``Price lists may be developed''.
In paragraph (d) changed ``you use'' to ``the contracting
officer uses'' and changed ``You may provide'' to ``This information
may be provided''.
In paragraph (e) changed ``You may use prices'' to
``Prices may be used''.
In paragraph (h) changed ``If you cannot estimate the
Government's needs'' to ``If the Government's needs cannot be
estimated''.
In paragraph (i)(6) changed ``If you provide'' to ``If
providing''.
In paragraph (i)(8) deleted the sentence in its entirety
and replaced it with ``When the solicitation further groups united
prices by trade or business category, multiple percentages may be
required''.
514.407-3 Other mistakes disclosed before award.
Deleted paragraph (b) because it is redundant with FAR
14.407-3(f).
Renumbered old paragraphs (1) and (2) as paragraphs (a)
and (b), respectively.
514.407-4 Mistakes after award.
Added ``are required to'' and changed ``your'' to ``the
contracting officer's''.
552.214-70 ``All or None'' Bids.
In paragraph (a) deleted the first part of the sentence so
it now to begins with ``The Government . . . .''
Deleted Alternate I in its entirety to match the changes.
Changed all occurrences of the word ``offer'' to ``bid''.
552.214-71 Progressive Awards and Monthly Quantity Allocations.
Changed all occurrences of the words ``offeror'',
``offer'' or ``offering'' to ``bidder'', ``bid'', or bidding.
552.214-72 Bid Sample Requirements.
Deleted ``NOTE: (1)'' because it is redundant.
Discussion of Comments
A proposed rule for the regulatory portion of the GSAM was
published in the Federal Register at 73 FR 60225 on October 10, 2008.
The public comment period for GSAR Part 514 closed on December 9, 2008,
and four (4) comments were received. A discussion of these comments is
provided below:
Comment 1: 514.201-2.
``(See FAR 52.232-25)'' has been added to the subsection. However,
that is only one of three Prompt Payment clauses. Recommend all three
clauses be referenced as historically construction has been procured
with sealed bidding. While that has changed in the last decade, all
three clauses should still be referenced: ``(See FAR 52.232-25, 52.232-
26, or 52.232-27, as applicable)''.
Response:
Concur. All three Prompt Payment clauses have been added.
Comment 2: 514.202-5.
Recommend deleting this section. It merely states the clause in the
FAR is sufficient. It does not add any value. If the information is
already in the FAR, no further information needs to be identified in
the GSAR.
Response:
Non-concur; 514.202-5 amplifies the information, or rather points
the reader to the information in the FAR.
Comment 3: 514.270-2.
The new paragraph (a)(4) already exists, verbatim, as part of
paragraph (a)(3). As the proposed paragraph (a)(4) is related to the
information in paragraph (a)(3), recommend leaving it in paragraph
(a)(3), but reformatting the sentence to make it clear it is part of
(a)(3). In the current GSAR, it has been dropped down a line.
Response:
Non-concur. Items (a)(3) and (a)(4) are different enough that they
can be listed as two different items in the list of series.
Comment 4: 514.270-3.
Recommend adding a clause or provision as a consistent method for
providing the notification required in the solicitation. Revise as,
``Insert a clause substantially the same as the clause at 552.214-XX,
Evaluation for Aggregate Award, in solicitations that will include
aggregate line items for award.''
Response:
Non-concur. The team believes that FAR 52.214-22, Evaluation of
Bids for Multiple Awards, provides equivalent coverage.
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 revisions are not considered substantive. The
revisions only update and reorganize existing coverage. This is not a
significant change. Therefore, a Regulatory Flexibility Analysis was
not performed. In accordance with 5 U.S.C. 610, the proposed rule
requested comments from small entities concerning this assessment, and
no comments were received.
C. Paperwork Reduction Act
The Paperwork Reduction Act applies; 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 501, 514, and 552
Government procurement.
Dated: August 31, 2009.
David A. Drabkin,
Senior Procurement Executive, Office of Acquisition Policy, General
Services Administration.
0
Therefore, GSA amends 48 CFR parts 501, 514, and 552 as set forth
below:
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1. The authority citation for 48 CFR parts 501, 514, and 552 continues
to read as follows:
Authority: 40 U.S.C. 121(c).
PART 501--GENERAL SERVICES ADMINISTRATION ACQUISITION REGULATION
SYSTEM
501.106 [Amended]
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2. Amend section 501.106 by adding the GSAR Reference number ``514.201-
1'', in numerical sequence, and its corresponding OMB Control No.
``3090-0163''.
PART 514--SEALED BIDDING
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3. Revise section 514.201-2 to read as follows:
514.201-2 Part I--The Schedule.
(a) When using Standard Form 33, Solicitation, Offer and Award,
include the following cautionary notice:
[[Page 47739]]
``Notice to Bidders--Use Item 13 of the Standard Form 33,
Solicitation, Offer and Award, to offer prompt payment discounts. The
Prompt Payment clause of this solicitation sets forth payment terms. Do
not insert any statement in Item 13 that requires payment sooner than
the time stipulated in the Prompt Payment clause (See FAR 52.232-25,
52.232-26, or 52.232-27, as applicable). EXAMPLE: If you insert ``NET
20'' in Item 13, GSA will reject your bid as nonresponsive because the
entry contradicts the 30 day payment terms specified in the Prompt
Payment clause.''
(b) When using other authorized forms (e.g., Standard Form 1447,
Solicitation/Contract; Standard Form 1449, Solicitation/Contract/Order
for Commercial Items), include the notice in paragraph (a) of this
section. Change the reference to the form number, form title, and item
number accordingly.
0
4. Revise section 514.201-6 to read as follows:
514.201-6 Solicitation provisions.
When considering all or none bids, insert the provision at 552.214-
70, ``All or None'' Bids, in the solicitation.
0
5. Revise section 514.201-7 to read as follows:
514.201-7 Contract clauses.
Stock replenishment contracts. For some stock replenishment
contracts, individual contractors may be unable to furnish the
Government's monthly requirements. The contracting officer may
determine that progressive awards will be more expedient. In such
cases, insert a clause substantially the same as the clause at 552.214-
71, Progressive Awards and Monthly Quantity Allocations, in the
solicitation and contract.
0
6. Revise section 514.202-4 to read as follows:
514.202-4 Bid samples.
(a) Requirements for samples in invitations for bids. (1) When bid
samples are required, the contracting officer shall require bidders to
submit samples produced by the manufacturer whose products will be
supplied under the contract.
(2) The FAR limits use of bid samples to cases where the
contracting officer cannot describe some characteristics of a product
adequately in the specification or purchase description. This usually
applies to subjective characteristics. The contracting officer may
determine that there is a need to examine objective characteristics of
bid samples to determine the responsiveness of a bid. The contracting
officer should base the determination on past experience or other valid
considerations. In the solicitation, separately list ``Subjective
Characteristics'' and ``Objective Characteristics''.
(3) A provision appears at 552.214-72, Bid Sample Requirements.
This provision may be modified to fit the circumstances of a
procurement.
(b) Handling bid samples. (1) Samples from accepted bids must be
retained for the period of contract performance. If there are no
outstanding claims regarding the contract, the contracting officer may
authorize disposal of the samples at the end of the contract term
following the bidder's instructions.
(2) If the contracting officer anticipates a claim regarding the
contract, the contracting officer shall require that the bid samples be
retained until the claim is resolved.
(3) The contracting officer shall require that samples from
unsuccessful bids be retained until award. After award, these samples
may be disposed of following the bidder's instructions.
0
7. Add section 514.202-5 to read as follows:
514.202-5 Descriptive literature.
Requirements for Invitations for bids. When using brand name or
equal purchase descriptions, the provision at FAR 52.211-6 satisfies
the requirement for descriptive literature.
514.203 [Removed]
0
8. Remove section 514.203.
0
9. Amend section 514.270-2 by--
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a. Redesignating paragraphs (a)(4) and (a)(5) as paragraphs (a)(5) and
(a)(6), respectively, and adding new paragraph (a)(4); and
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b. Revising the introductory text of paragraph (b), and paragraph (c).
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The revised and added text reads as follows:
514.270-2 Guidelines for use.
(a) * * *
(4) Awarding the low-demand articles in conjunction with the high-
demand articles may encourage competition.
* * * * *
(b) Before deciding to combine items for aggregate award, the
contracting officer should consider the following factors:
* * * * *
(c) The contracting officer should not use an aggregate award if it
will significantly restrict the number of eligible bidders.
0
10. Revise section 514.270-3 to read as follows:
514.270-3 Evaluation factors for award.
The solicitation should clearly state the basis for evaluating bids
for aggregate award, require bidders to submit a price on each item
within the group or a percentage to be added or subtracted from a list
price, and advise bidders that failure to submit prices as required
within a group makes a bid ineligible for award for that group.
0
11. Amend section 514.270-4 by--
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a. Revising paragraph (a);
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b. Removing from paragraph (b) ``you group'' and adding ``grouping'' in
its place;
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c. Removing from paragraph (d)(2) ``respond'' and adding ``responded''
in its place; and
0
d. Removing from paragraph (d)(3)(i) ``you to lose'' and adding ``the
loss of'' in its place.
514.270-4 Grouping line items for aggregate award.
(a) Supplies and services. This subsection applies to acquisitions
of supplies and services.
* * * * *
0
12. Amend section 514.270-6 by--
0
a. Removing from the introductory text of paragraph (a) ``you have''
and adding ``there are'' in its place;
0
b. Revising the first sentence in paragraph (d); and
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c. Removing from paragraph (e) the word ``you''.
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The revised text reads as follows:
514.270-6 Guidelines for using the weight factors method.
* * * * *
(d) Estimated quantities may be reduced to smaller numbers by a
common denominator. * * *
* * * * *
0
13. Amend section 514.270-7 by--
0
a. Revising the first sentence in paragraph (a);
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b. Revising the introductory text of paragraphs (b) and (c);
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c. Revising paragraph (d);
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d. Revising the second sentence of paragraph (e); and
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e. Revising the third sentence in paragraph (h), and paragraphs (i)(6)
and (i)(8).
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The revised text reads as follows:
514.270-7 Guidelines for using the price list method.
(a) General. The price list method helps avoid unbalanced bidding
when making aggregate awards, but lack accurate estimates of
anticipated quantities. * * *
(b) Solicitation requirements. When using the price list method, in
the solicitation:
* * * * *
[[Page 47740]]
(c) Developing list prices. Price lists may be developed using one
or more of the following sources:
* * * * *
(d) First time use for an item or service. The first time the
contracting officer uses list prices for an item or service, give
prospective bidders an opportunity to review the proposed list. Also
provide information on how GSA will use the list prices. This
information may be provided in a draft solicitation.
(e) * * *. Prices may be used from previous awards made using the
weight factors method to develop price lists.
* * * * *
(h) * * *. If the Government's needs cannot be estimated, the
solicitation may include past orders. * * *
(i) * * *
(6) If providing quantity estimates, state that the estimates are
for information only and do not constitute guarantees or commitments to
order items under the contract.
* * * * *
(8) When the solicitation further groups unit prices by trade or
business category, multiple percentages may be required.
* * * * *
0
14. Revise section 514.407-3 to read as follows:
514.407-3 Other mistakes disclosed before award.
Delegation of authority by head of the agency. Under FAR 14.407-
3(e), contracting directors (see 502.101) are authorized, without power
of redelegation, to make:
(a) The determinations regarding corrections and withdrawals under
FAR 14.407-3(a), (b), and (c); and
(b) The corollary determinations not to permit withdrawal or
correction under FAR 14.407-3(d).
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15. Revise section 514.407-4 to read as follows:
514.407-4 Mistakes after award.
The contracting director and assigned counsel are required to
review and approve the contracting officer's determinations under FAR
14.407-4(b) and (c).
PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
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16. Revise the section heading, date of the provision and paragraphs
(a) and (b) of section 552.214-70; and remove Alternate I.
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The revised text reads as follows:
552.214-70 ``All or None'' Bids.
* * * * *
``ALL OR NONE'' BIDS (Oct 2009)
(a) The Government reserves the right to evaluate bids and make
awards on an ``all or none'' basis as provided below.
(b) A bid submitted on an ``all or none'' or similar basis will
be evaluated as follows: The lowest acceptable bid exclusive of the
``all or none'' bid will be selected with respect to each item (or
group of items when the solicitation provides for aggregate awards)
and the total cost of all items thus determined shall be compared
with the total of the lowest acceptable ``all or none'' bid. Award
will be made to result in the lowest total cost to the Government.
0
17. Amend section 552.214-71 by revising the date of the clause,
paragraph (a)(1), the introductory text of paragraph (a)(2), and
paragraph (b) to read as follows:
552.214-71 Progressive Awards and Monthly Quantity Allocations.
* * * * *
PROGRESSIVE AWARDS AND MONTHLY QUANTITY ALLOCATIONS (Oct 2009)
(a) Monthly quantity allocation.
(1) Set forth below are the Government's estimated annual and
monthly requirements for each stock item covered by this
solicitation. Bids shall indicate, in the spaces provided, the
monthly quantity which the bidder is willing to furnish of any item
or group of items involving the use of the same production
facilities. In making monthly allocations, bidders are urged to
group as many items as possible. Such groupings will make it
possible for the Government to make fullest use of the production
capabilities of each bidder.
(2) Bidders need not limit their monthly allocations to the
Government's estimated monthly requirements, since additional
unanticipated needs may occur during the period of the contract. If
a bid does not include monthly allocation quantities, it will be
deemed to offer to furnish all of the Government's requirements,
even though they may exceed the stated estimated requirements.
* * * * *
(b) Progressive awards. If the low responsive bid's monthly
quantity allocation is less than the Government's estimated
requirements, the Government may make progressive awards beginning
with the low responsive bid and including each next low responsive
bid to the extent necessary to meet the estimated requirements.
* * * * *
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18. Amend section 552.214-72 by--
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a. Revising the date of the provision;
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b. Revising the ``Note'' in paragraph (b); and
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c. Adding paragraph (e).
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The revised and added text reads as follows:
552.214-72 Bid Sample Requirements.
* * * * *
BID SAMPLE REQUIREMENTS (Oct 2009)
* * * * *
(b) * * *
NOTE: Bidders that propose to furnish an item or group of items
from more than one manufacturer or production point must submit two
samples from the production of each manufacturer or production
point.
* * * * *
(e) Contracting Officer insert address.
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[FR Doc. E9-22209 Filed 9-16-09; 8:45 am]
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