[Federal Register: March 25, 2009 (Volume 74, Number 56)]
[Rules and Regulations]
[Page 12731-12733]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25mr09-40]
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GENERAL SERVICES ADMINISTRATION
48 CFR Parts 509 and 552
[GSAR Amendment 2009-01; GSAR Case 2006-G512 (Change 27); Docket 2008-
0007; Sequence 9]
RIN 3090-AI57
General Services Acquisition Regulation; GSAR Case 2006-G512;
Rewrite of GSAR Part 509, Contractor Qualifications
AGENCY: Office of the Chief Acquisition Officer, General Services
Administration (GSA).
ACTION: Final rule.
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SUMMARY: The General Services Administration (GSA) is amending the
General Services Administration Acquisition Manual (GSAM) to update the
text addressing contractor qualifications. 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 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.
DATES: Effective Date: April 24, 2009.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Meredith Murphy, Procurement Analyst, at (202) 208-6925. 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 2009-01, GSAR case 2006-
G512 (Change 27).
SUPPLEMENTARY INFORMATION:
A. Background
The GSAR Rewrite Project and Process
On February 15, 2006, GSA published an Advance Notice of Proposed
Rulemaking (ANPR) with request for comments on all parts of the GSAM.
As a result, two comments were received on Part 509. These are
addressed below. In addition, 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 36013, June
25, 2008. In addition, GSA Acquisition Letter V-08-06, entitled
``Changes to Procedures for Conducting Fact-Finding in a Debarment/
Suspension Case Under GSAM Subpart 509.4,'' dated June 20, 2008, was
incorporated into Subpart 509.4 (see below). The public comment period
for GSAR Part 509 closed on August 25, 2008, and six comments were
received from five commenters.
The Rewrite of Part 509
This final rule contains the revisions made to Part 509, Contractor
Qualifications. GSA Form 353, Performance Evaluation and Facilities
Report, is deleted so that similar FAR forms will be used instead.
Subpart 509.2, subsection 509.405-1(b), and clauses 552.209-70 through
552.209-73 are deleted because they are deemed unnecessary. The
explanation of ``auditor'' in 509.105-1 is removed because it is partly
duplicative (credit and finance) and too restrictive (does not allow
use of DCAA). Subsection 509.406-3(b)(7) is deleted as duplicative of
509.406-3(b)(5). The debarment legal authorities in 509.401 are
updated. The term ``Suspension and Debarment Official'' is used
consistently throughout the Part. Subparagraph 509.406-3(d) was
rewritten to incorporate the procedures for conducting fact finding in
a debarment or suspension case from GSA Acquisition Letter V-08-06,
dated June 20, 2008.
Discussion of Comments
A proposed rule was published in the Federal Register at 73 FR
36013, June 25, 2008. The comment period closed August 25, 2008, and
six comments were received from five commenters. Also, GSA Acquisition
Letter V-08-06, published on June 20, 2008, was incorporated in the
final rule.
1. No new guidelines on teaming.
Comment: Four commenters wrote in support of the revisions to GSAR
Part 509 and to advocate not creating new guidelines that would make it
more difficult for small businesses to work as teams.
Response: Concur. There are no plans to create new guidelines for
teaming.
2. Revise rules for GSA Form 527 so as not to make it a last resort
for contracting officers.
Comment: The GSA Form 527, Contractor Qualifications and Financial
Information, was retained, but associated text was modified to
authorize its use ``only after exhausting other available sources of
information.'' While acknowledging that the GSA Form 527 is lengthy,
the commenter does not think that making the preaward process longer by
having contracting officers research all other sources of information
prior to seeking needed information from the contractor is helpful to
either party. The commenter said he would not be entirely comfortable
making a responsibility determination based only on information
external to the offeror, without providing the offeror an opportunity
to tell its own story about qualifications and abilities.
Response: Nonconcur. FAR 9.105 includes the standards and
procedures for requesting and obtaining information sufficient to
determine the responsibility of a prospective contractor, i.e., that an
offeror meets the standards at FAR 9.104. A careful reading of FAR
9.105-1 nets a long list of potential sources for objective
information, none of which are the offeror itself. While there is
nothing wrong with obtaining information directly from an offeror, the
offeror itself should not be the first, or the only, source of
information for making a responsibility determination. GSA acquisition
personnel should make greater use of the information sources listed in
the FAR, and appropriate use of such sources would not extend the
length of time needed to make a responsibility determination.
3. Consider eliminating GSA Form 527.
Comment: A commenter proposed to eliminate GSA Form 527, as long as
GSA Finance will continue to perform financial reviews without it.
Rather than using a lengthy form, the commenter said, perhaps a brief
GSAR solicitation provision could be written detailing the type of
information an offeror may be requested to provide to support a
responsibility determination.
Response: Nonconcur. While this is a good concept, made in the
spirit of eliminating unnecessary agency-level supplementation of the
FAR, the GSA Office of Finance, at this time, will not agree to perform
financial reviews without it.
4. GSA Acquisition letter V-08-06, entitled ``Changes to Procedures
for
[[Page 12732]]
Conducting Fact-Finding in a Debarment/Suspension Case Under GSAM
Subpart 509.4.''
Comment: In accordance with the GSAM rewrite drafting principles, a
GSA acquisition letter published after the Part 509 proposed rule was
sent for publication, was incorporated into the final GSAM Part 509.
Response: The revisions made by the Acquisition Letter, published
on June 20, 2008, were included in the draft final rule. Subpart 509.4
was revised at 509.403 to incorporate the definition of ``fact-finding
official,'' and the procedures for fact finding replaced the earlier
version of 509.406-3, Procedures, in accordance with the authority
granted at FAR 9.406-3(b).
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 the only changes are minor ones, i.e.,
deleting a GSA-unique form and four GSA-unique clauses in favor of
using the FAR forms and clauses.
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 509 and 552
Government procurement.
Dated: December 15, 2008.
David A. Drabkin,
Senior Procurement Executive, Office of the Chief Acquisition Officer,
General Services Administration.
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Therefore, GSA amends 48 CFR parts 509 and 552 as set forth below:
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1. The authority citation for 48 CFR part 509 is revised to read as
follows:
Authority: 40 U.S.C. 121(c).
PART 509--CONTRACTOR QUALIFICATIONS
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2. Revise sections 509.105, 509.105-1, and 509.105-2 to read as
follows:
509.105 Procedures.
509.105-1 Obtaining information.
(a) From a prospective contractor. FAR 9.105-1 lists a number of
sources of information that a contracting officer may utilize before
making a determination of responsibility. The contracting officer may
request information directly from a prospective contractor using GSA
Form 527, Contractor's Qualifications and Financial Information, but
only after exhausting other available sources of information.
(b) From Government personnel. The contracting officer may solicit
and consider information from any appropriate activities, e.g., legal
counsel, quality control, contract management, credit and finance, and
auditors before determining that an offeror is responsible.
509.105-2 Determinations and documentation.
(a) The contracting officer shall provide written notification to a
prospective contractor determined not responsible. Include the basis
for the determination. Notification provides the prospective contractor
with the opportunity to correct any problem for future solicitations.
(b) Due to the potential for de facto debarment, the contracting
officer shall avoid making repeated determinations of nonresponsibility
based on the same past performance information.
(c) To provide for timely consideration of the need to institute
action to debar a contractor, the contracting officer shall submit a
copy of each nonresponsibility determination, other than those based on
capacity or financial capability, to the Suspension and Debarment
Official in the Office of the Chief Acquisition Officer.
509.106 [Removed]
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3. Section 509.106 is removed.
Subpart 509.2 [Removed]
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4. Subpart 509.2 is removed.
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5. Revise section 509.306 to read as follows:
509.306 Solicitation requirements.
The clauses at FAR 52.209-3 and 52.209-4 do not cover all the
solicitation requirements described in FAR 9.306. If a solicitation
contains a testing and approval requirement, the contracting officer
must address the requirements in FAR 9.306(d) and (f) through (j) in
the solicitation's Section H, special contract requirements.
509.308 [Removed]
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6. Section 509.308 is removed.
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7. Revise section 509.401 to read as follows:
509.401 Applicability.
This subpart applies to all the following:
(a) Acquisitions of personal property, nonpersonal services,
construction, and space in buildings.
(b) Acquisition of transportation services (Federal Management
Regulation (FMR) Parts 102-117 and 102-118 (41 CFR parts 102-117 and
102-118)).
(c) Contracts for disposal of personal property (FMR Parts 102-36
through 102-38 (41 CFR parts 102-36 through 102-38)).
(d) Covered transactions as defined by 41 CFR part 105-68.
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8. Amend section 509.403 by adding, in alphabetical order, the
definitions ``Debarring official'' and ``Suspending official''; and, by
revising the definition ``Fact-finding official. The added and revised
text reads as follows:
509.403 Definitions.
Debarring official means the Suspension and Debarment Official
within the Office of the Chief Acquisition Officer.
Fact-finding official, means the Suspension and Debarment Official
or a designee.
* * * * *
Suspending official means the Suspension and Debarment Official
within the Office of the Chief Acquisition Officer.
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9. Revise sections 509.405, 509.405-1 and 509.405-2 to read as follows:
509.405 Effect of listing.
509.405-1 Continuation of current contracts.
(a) When a contractor appears on the current EPLS, consider
terminating a contract under any of the following circumstances:
(1) Any circumstances giving rise to the debarment or suspension
also constitute a default in the contractor's performance of the
contract.
(2) The contractor presents a significant risk to the Government in
completing the contract.
(3) The conduct that provides the cause of the suspension, proposed
debarment, or debarment involved a GSA contract.
(b) Before terminating a contract when a contractor appears on the
current EPLS, consider the following factors:
(1) Seriousness of the cause for debarment or suspension.
[[Page 12733]]
(2) Extent of contract performance.
(3) Potential costs of termination and reprocurement.
(4) Need for or urgency of the requirement, contract coverage, and
the impact of delay for reprocurement.
(5) Availability of other safeguards to protect the Government's
interest until completion of the contract.
(6) Availability of alternate competitive sources to meet the
requirement (e.g., other multiple award contracts, readily available
commercial items.)
(c) The responsibilities of the agency head under FAR 9.405-1 are
delegated to the GSA Suspension and Debarment Official.
509.405-2 Restrictions on subcontracting.
The responsibilities of the agency head under FAR 9.405-2(a) are
delegated to the GSA Suspension and Debarment Official.
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10. Revise section 509.406-1 to read as follows:
509.406-1 General.
The Suspension and Debarment Official is the designee under FAR
9.406-1(c).
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11. Amend section 509.406-3 by--
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a. Removing from paragraphs (a) and (b), the words ``debarring
official'' and adding the words ``Suspension and Debarment Official''
in its place each time it appears;
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b. Removing from paragraph (b)(2), the word ``Number'' and adding the
word ``Numbers'' in its place;
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c. Removing paragraph (b)(7);
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d. Revising paragraph (c); and
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e. Removing from paragraphs (d)(1) and (d)(2) the words ``debarring
official'' and adding the words ``Suspension and Debarment Official''
in its place each time it appears; and
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f. Revising paragraph (d)(3).
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The revised text reads as follows:
509.406-3 Procedures.
* * * * *
(c) Review. The Suspension and Debarment Official will review the
report, and after coordinating with assigned legal counsel--
(1) Initiate debarment action;
(2) Decline debarment action;
(3) Request additional information; or
(4) Refer the matter to the OIG for further investigation and
development of a case file.
(d) * * *
(3) Following a review of the record and, if needed, a presentation
by the contractor in opposition to the proposed action, the Suspension
and Debarment Official will determine whether there is a genuine
dispute of material fact. If so, the Suspension and Debarment Official
will initiate the fact-finding process. The fact-finding official will:
(i) Establish a date for a fact-finding proceeding, normally to be
held within 45 days of the determination of who will function as the
fact-finding official.
(ii) Grant extensions for good cause.
(iii) Provide notice of the scheduled hearing.
(iv) Provide the parties with a schedule for exchange of documents
and witness lists.
(v) Develop an official transcript of the fact-finding proceeding.
(vi) Provide the Government's representative and the contractor
with an opportunity to present evidence relevant to the facts at issue.
The contractor may appear in person or through a representative.
(vii) Conduct hearings under rules consistent with FAR 9.406-3
pertaining to fact finding. Neither the Federal Rules of Evidence nor
the Federal Rules of Civil Procedure govern fact finding. Hearsay
evidence may be presented and will be given appropriate weight by the
fact-finding official.
(viii) Provide for witness testimony. Witnesses may testify in
person. Witnesses are subject to cross examination.
(ix) Prepare written findings of fact based on a preponderance of
the evidence and submit them to both the Suspension and Debarment
Official and the contractor within 20 calendar days following the
conclusion of the fact-finding proceeding.
509.407-1 [Amended]
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12. Amend section 509.407-1 by removing the words ``suspending
official'' and adding ``Suspension and Debarment Official'' in its
place.
509.407-3 [Amended]
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13. Amend section 509.407-3 by removing the words ``suspending
official'' and adding ``Suspension and Debarment Official'' in its
place each time it appears.
PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
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14. The authority citation for 48 CFR part 552 continues to read as
follows:
Authority: 40 U.S.C. 121(c).
552.209-70 through 552.209-73 [Removed]
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15. Sections 552.209-70 through 552.209-73 are removed.
[FR Doc. E9-6574 Filed 3-24-09; 8:45 am]
BILLING CODE 6820-EP-S