[Federal Register Volume 74, Number 193 (Wednesday, October 7, 2009)]
[Rules and Regulations]
[Pages 51510-51512]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24158]
=======================================================================
-----------------------------------------------------------------------
GENERAL SERVICES ADMINISTRATION
48 CFR Parts 503 and 552
GSAR Amendment 2009-12; GSAR Case 2008-G502 (Change 40) Docket 2008-
0007; Sequence 7
RIN 3090-AI63
General Services Administration Acquisition Regulation; Rewrite
of GSAR Part 503; Improper Personal Conflicts of Interest
AGENCIES: General Services Administration (GSA), Office of the
Acquisition Policy.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The General Services Administration (GSA) is amending the
General Services Administration Acquisition Regulation (GSAR) by
revising the regulations pertaining to Improper Business Practices and
Personal Conflicts of Interest. This rule is a product of the GSAM
Rewrite Initiative undertaken by GSA to revise the regulation to
maintain consistency with the FAR and implement streamlined and
innovative acquisition procedures for contractors, offerors, and GSA
contracting personnel. The GSAM incorporates the General Services
Administration Acquisition Regulation (GSAR) as well as internal agency
acquisition policy.
DATES: Effective Date: October 7, 2009.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ernest Woodson, Procurement Analyst, at (202) 501-3775. For information
pertaining to status or publication schedules, contact the Regulatory
Secretariat (MVR), Room 4041, 1800 F Street, NW, Washington, DC, 20405,
(202) 501-4755. Please cite Amendment 2009-12, GSAR case 2008-G502
(Change 40).
SUPPLEMENTARY INFORMATION:
A. Background
This final 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 acquisition 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.
An Advanced Notice of Proposed Rulemaking was published at 71 FR
7910, February 15, 2006, for the GSAM Rewrite Projects and public
comments were received. However, none of the comments were specific to
Part 503. The case was assigned to GSAM Part 503 Rewrite Team on
February 18, 2008. A Team report was completed on March 3, 2008.
To ensure completeness, internal comments were solicited and
received from GSA Regions 1, 2, 3, 6, 7, 8, 10, and 11, GSA published a
proposed rule with request for comments in the Federal Register at 73
FR 45194, August 4, 2008. The public comment period closed October 3,
2008. One response was received with three comments. This final rule
reconciles the conclusions from the Team report with the internal
comments, and public comment as follows:
Public Comments
Comment: The respondent was concerned that the requirement in
503.204(c) for an agency fact-finding official to be designated by GSA
Board of Contract Appeals was not revised to indicate that the Civilian
Board of Contract Appeals (CBCA) would designate the official as means
of ensuring that disputes over gratuities violations are handled
independently and objectively.
Response: The CBCA will not designate an agency fact-finding
official for the treatment of violations under 503.204, as its current
operating procedures do not encompass the activity. The Senior
Procurement Executive will refer matters under the jurisdiction of GSAR
503.204 to the Suspension and Debarment Official, in accordance with
GSAR 509.403, because the Suspension and Debarment Official is the
individual who can appoint a fact-finding official, should one be
necessary.
Comment: The respondent was concerned that 503.1004 does not
provide a specific rationale for establishing a lower threshold, or why
that threshold would be $1,000,000. The respondent believes that the
subsection makes the threshold sound arbitrary.
Response: FAR 3.1004(b)(1)(i) provides for agencies to establish a
threshold lower than $5,000,000. Pursuant to FAR 1.302(b), agency
acquisition regulations may supplement the FAR to include additional
policies and procedures that satisfy the specific needs of the agency.
GSA's lower threshold of $1,000,000 is based on GSA's unique
acquisition mission and the dollar amount of an order that may be
placed by GSA, under a task and delivery order contract. Further, the
lower threshold insures greater visibility for the detection of fraud
in Federal contracts ensuring protection for the taxpayer.
Comment: 503.1004(b)--The fill-in includes the acronym ``OIG''.
Spell out as Office of the Inspector General. The FAR does otherwise
include a reference to OIG.
Response: GSA concurs with the respondent and will make the change
accordingly.
The Rewrite of Part 503
This final rule contains revisions to Part 503, Improper Business
Practices and Personal Conflicts of Interest. There are no substantive
changes to the policies. The rule revises GSAR Subpart 503.1
Safeguards; deletes 503.104-1 and 503.104-9, to ensure consistency with
the GSAM that provides that the acquisition of leasehold interests in
real property is established by GSAM Part 570; deletes 503.104-4,
because post employment restrictions are covered under Federal
conflicts of interest laws and the Procurement Integrity Act that every
employee has a responsibility to know; adds 503.104-2, to indicate that
acquisition officials are responsible for knowing the post-employment
restrictions in FAR 3.104-2(b)(3) and in the Procurement Integrity Act;
renumbers 503.104-5 to 503.104-4 and revises 503.104-4, adds
appropriate GSAM and FAR references for the release of information to
outside evaluators and deletes inappropriate forms and language already
addressed in other GSAM subsections; and renumbers 503.104-10 to
503.104-7, for consistency with the FAR numbering sequence.
[[Page 51511]]
Revises Subpart 503.2 Contractor Gratuities to Government
Personnel; revises 503.203(a) by deleting the reference to the Code of
Federal Regulations and relocating the reference at the end of
503.203(c) in order to ensure the integrity of the subsection; revises
503.204(a)(2), by deleting the phrase ``joint venture'' in order to
ensure grammatical and structural clarity; revises 503.204(c), by
replacing ``the Chairman of the GSA Board of Contract Appeals'' with
``the Suspension and Debarment Official in accordance with FAR
509.403,'' because the GSA Board of Contract Appeals no longer exists;
and revises 503.204(f), to ensure consistency with FAR 3.204(f).
Revises Subpart 503.3 Reports of Suspected Antitrust Violations;
revises 503.303, to ensure grammatical and structural clarity.
Revises Subpart 503.4 Contingents Fees; by deleting 503.404, in
order to ensure consistency with the GSAM which provides that the
acquisition of leasehold interests in real property is established by
GSAM Part 570, and revises 503.405 to ensure grammatical and structural
clarity.
Revises Subpart 503.5 Other Improper Business Practices; revises
503.570-1 to delete the term ``referring'' and add ``making
references'' for clarity.
Revises Subpart 503.7 Voiding and Rescinding Contracts; revises
503.702 to delete the definition for ``Notice'' and ``Voiding and
rescinding official'' as the terms do not require definition; adds a
new section 503.703 in order to identify the Senior Procurement
Executive as having the authority to void and rescind contracts
pursuant to FAR 3.703 and 3.705(b); relocates 503.705 from the GSAR to
the manual part of the GSAM, because it relates to internal
administrative procedures; revises 503.705 by revising 503.705(a)(1) to
add ``the contracting officer shall'' to ensure clarity; revises
503.705(a)(2), to delete ``you may'' and ``voiding and rescinding
official'' and add ``the contracting officer shall,'' ``Senior
Procurement Executive,'' and ``and shall,'' to ensure clarity and
continuity; revises 503.705(a)(2)(i) to add ``Identify'' to ensure
clarity; revises 503.705(2) by adding paragraphs (ii) and (iii) to
ensure grammatical and structural integrity; deletes 503.705(a)(3)
because the contracting officer does not have the authority cited in
the subsection; revises 503.705(b) to delete ``Voiding and rescinding
official's,'' and add ``Senior Procurement Executive'' to ensure
continuity; revises 503.705(b)(1), to delete ``the voiding and
rescinding official'' to ensure continuity; revises 503.705(b)(2) to
ensure grammatical and structural integrity; revises 503.705(b)(3) to
ensure grammatical and structural integrity; revises 503.705(b)(4) to
delete ``voiding and rescinding official'' and add ``Senior Procurement
Executive,'' in order to ensure continuity; revises 503.705(b)(5), to
delete ``The official'' to ensure clarity; and revises 503.705(c)(5),
to ensure clarity.
Revises Subpart 503.8 Limitation on the Payment of Funds to
Influence Federal Transactions; revises 503.806 to ensure grammatical
and structural integrity, and deletes ``Inspector General for
Investigation'' and adds ``Special Agent in Charge,'' to ensure
clarity.
Adds a new Subpart 503.10 Contractor Code of Business Ethics and
Conduct; establishes a lower threshold for the inclusion of FAR 52.203-
14 Display of Hotline Poster(s) at 503.1004(a) and includes the name of
the poster and where the poster may be obtained at 503.1004(b)(i) and
(ii), pursuant to FAR 52.203-14(b)(3).
Deletes GSAR 552.203-5 Covenant Against Contingent Fees; in order
to ensure consistency with the GSAM that provides that the acquisition
of leasehold interests in real property is established by GSAM Part
570, and deletes GSAR 552.203-70 to ensure consistency with the GSAM
requirements that leasehold interests in real property is established
by GSAM Part 570.
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 certifies that this final rule
will not 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 no new requirements are being placed on
the vendor community. No comments on this issue were received from
small business concerns or other interested parties.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the GSAR do not impose recordkeeping or information collection
requirements, or otherwise collect information from offerors,
contractors, or members of the public that require approval of the
Office of Management and Budget under 44 U.S.C. Chapter 35, et seq.
List of Subjects in 48 CFR Parts 503 and 552
Government procurement.
Dated: September 30, 2009
David A. Drabkin,
Senior Procurement Executive, Office of Acquisition Policy, General
Services Administration.
0
Therefore, GSA amends 48 CFR parts 503 and 552 as set forth below:
PART 503--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
0
1. The authority citation for 48 CFR part 503 is revised to read as
follows:
Authority: 40 U.S.C. 121(c).
503.104-3 and 503.104-9 [Removed]
0
2. Remove sections 503.104-3 and 503.104-9.
0
3. Amend section 503.204 by--
0
a. Removing the period at the end of paragraph (a)(1) and adding ``;''
in its place;
0
b. Removing from paragraph (a)(2) ``or joint venture'' and adding ``;
and'' in its place;
0
c. Revising the first sentence of the introductory text of paragraph
(c); removing the period at the end of paragraphs (c)(1) and (c)(2) and
adding ``;'' in its place; and removing the period at the end of
paragraph (c)(3) and adding ``; and'' in its place; and
0
d. Revising the first sentence of paragraph (f).
The revised text reads as follows:
503.204 Treatment of violations.
* * * * *
(c) If there is a dispute of fact material to making a
determination, the Senior Procurement Executive, or designee, may refer
the matter to an agency fact-finding official, designated by the
Suspension and Debarment Official, in accordance with GSAR 509.403. * *
*
* * * * *
(f) If the Gratuities clause was violated, the contractor may
present evidence of mitigating factors to the Senior Procurement
Executive, or designee, in accordance with FAR 3.204(b) either orally
or in writing, consistent with a schedule the Senior Procurement
Executive, or designee, establishes. * * *
503.404 [Removed]
0
4. Remove section 503.404.
503.570-1 [Amended]
0
5. Amend section 503.570-1 by removing ``referring'' and adding
``making references'' in its place.
503.702 [Removed]
0
6. Remove section 503.702.
[[Page 51512]]
503.703 [Added]
0
7. Add section 503.703 to read as follows:
503.703 Authority.
Pursuant to FAR 3.703 and 3.705(b), the authority to void or
rescind contracts resides with the Senior Procurement Executive.
503.705 [Removed]
0
8. Remove section 503.705.
0
9. Add Subpart 503.10 to read as follows:
Subpart 503.10--Contractor Code of Business Ethics and Conduct
503.1004 Contract clauses.
(a) The FAR threshold for the clause at 52.203-14, Display of
Hotline Poster(s), is $5,000,000. However, GSA has exercised the
authority provided at FAR 3.1004(b)(1)(i) to establish a lower
threshold, $1,000,000, for inclusion of the clause when the contract or
order is funded with disaster assistance funds.
(b) The information required to be inserted in the clause at FAR
52.203-14, Display of Hotline Poster(s), is as follows:
(1) Poster: GSA Office of Inspector General ``FRAUDNET HOTLINE'';
and
(2) Obtain from: Contracting Officer.
PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
10. The authority citation for 48 CFR part 552 continues to read as
follows:
Authority: 40 U.S.C. 121(c).
552.203-5 and 552.203-70 [Removed]
0
11. Remove sections 552.203-5 and 552.203-70.
[FR Doc. E9-24158 Filed 10-6-09; 8:45 am]
BILLING CODE 6820-61-S