[Federal Register Volume 75, Number 155 (Thursday, August 12, 2010)]
[Rules and Regulations]
[Pages 48872-48873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-19724]
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GENERAL SERVICES ADMINISTRATION
48 CFR Parts 541 and 552
[GSAR Amendment 2010-04; GSAR Case 2008-G511 (Change 47) Docket 2009-
0008; Sequence 1]
RIN 3090-AI85
General Services Administration Acquisition Regulation; Rewrite
of GSAR Part 541, Acquisition of Utility Services
AGENCIES: Office of Acquisition Policy, General Services Administration
(GSA).
ACTION: Final rule.
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SUMMARY: The General Services Administration (GSA) is amending the
General Services Administration Acquisition Regulation (GSAR) to
improve the acquisition of utility services. Two clauses specific to
utility services are being added to this part, they are the
availability of funds clause which replaces the FAR clause and the
disputes clause which supplements the FAR clause.
DATES: Effective Date: September 13, 2010.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Lori Sakalos, Procurement Analyst, at (202) 208-0498. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat (MVCB), Room 4041, 1800 F Street, NW.,
Washington, DC 20405, (202) 501-4755. Please cite Amendment 2010-04,
GSAR case 2008-G511 (Change 47).
SUPPLEMENTARY INFORMATION:
A. Background
This rule is part of the GSAM Rewrite Project to revise the
regulation in order to maintain consistency with the Federal
Acquisition Regulation (FAR), update regulations, and implement
streamlined and innovative acquisition procedures. The GSA Acquisition
Manual (GSAM) incorporates the GSAR as well as internal agency
acquisition policy.
On February 15, 2006, GSA published in the Federal Register at 71
FR 7910, an Advanced Notice of Proposed Rulemaking (ANPR) with a
request for comments on the entire GSAM. As a result, no public
comments were received on GSAR part 541. In addition, applicable
statutes, GSA Acquisition Letters, Public Buildings Service (PBS)
Procurement Instructional Bulletins, and GSA delegations of authority
were considered in developing the initial draft. Prior to publication
of a proposed rule, there was internal review and comment.
The proposed rule aligned GSAR part 541 to the structure of FAR
part 41. This rule added GSA-unique clauses in GSAR Subpart 541.5--
Solicitation Provisions and Contract Clauses.
Two GSA-unique clauses are prescribed under GSAR subpart 541.5.
These clauses are outlined in GSAR section 541.501, Solicitation
provisions and contract clauses, and shall be inserted by contracting
officers in all utility contracts and solicitations. The first clause,
GSAR 552.241-70, Availability of Funds for the Next Fiscal Year or
Quarter is added as regulatory text for inclusion in all GSA utility
solicitations and contracts instead of FAR 52.239-19. The second
clause, GSAR 552.241.71/552.233-71, Disputes (Utility Contracts), was
relocated from GSAM part 533 and added to this subpart to specifically
align with utility acquisitions.
Discussion of Comments
A proposed rule for GSAR part 541 was published in the Federal
Register on May 19, 2009, at 74 FR 23374. The public comment period for
GSAR part 541 closed on July 20, 2009. A total of 2 comments were
received by the close of the comment period.
Comment: One commenter stated that the proposed rule adds a new
clause GSAR ``552.241-xx, Availability of Funds for the Next Fiscal
Year or Quarter'' and FAR 52.232-19 is not currently used in Utility
contracts (which generally last for many years) since the clause is to
be used in one-year IDIQ or requirements contracts which cross fiscal
years. The respondent would like to use GSAR 552.232-73, which doesn't
require fill-ins instead of the new clause added to GSAR part 541.
Response: GSA does not concur with the commenter. The new clause is
specific to utility acquisitions and is not intended to be limited to a
one-year acquisition. Furthermore, the clause at GSAR 552.232-73 that
the commenter would prefer to use was deleted from the GSAR on
recommendation of GSA's Office of General Counsel. The new clause has
fill-ins for the contracting officer which can coincide with the
acquisitions period of performance.
Since this is a utilities contract, the explicit language in 31
U.S.C. 1308 allows GSA to obligate and record amounts quarterly (in
accordance with our apportionment). This satisfies the recordation
statute.
Additionally, in order to limit GSA's legal liability to the
contractor and satisfy the Anti-Deficiency Act (ADA), GSA has to have
an ADA clause that sets limits on the amount of our liability (either
by amount of money or by set period of time) and the clause must
provide that the limit can only be increased by affirmative action of
the Government.
Comment: The second commenter stated that the proposed rule moves
the existing GSAR clause 552.233-71 (Disputes-Utilities Contracts) from
GSAR part 533 to GSAR part 541.
However, preceding GSAR change 24, which is the rewrite of
GSAR part 533, deleted the clause in entirety since the use of FAR
clauses is preferred. The subject clause was deleted from the Public
Building Service (PBS) contract writing system clause module. In the
meantime, there is no authority to use the clause in the GSAR and no
prescription to use it.
Response: GSA does not concur with the commenter. There are no FAR
clauses which adequately address disputes for utility contracts.
However,
[[Page 48873]]
GSAR 552.241-71 (currently GSAR 552.233-71) will be relocated to this
part. All clauses relevant to utilities contracts will now be located
in GSAR part 541. The rewrite of GSAR part 541 will provide an
authority and prescription for use. After publication of this rule, PBS
can add the clause back in their contract writing system.
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 revisions are not considered
substantive. The revisions only update and reorganize existing
coverage.
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 541 and 552
Government procurement.
Dated: August 4, 2010.
Joseph A. Neurauter,
Senior Procurement Executive, Office of Acquisition Policy, General
Services Administration.
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Therefore, GSA amends 48 CFR chapter V as set forth below:
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1. Add part 541 to read as follows:
PART 541--ACQUISITION OF UTILITY SERVICES
Subpart 541.5--Solicitation Provisions and Contract Clauses
Sec.
541.501 Solicitation provision and contract clauses.
Authority: 40 U.S.C. 121(c).
Subpart 541.5--Solicitation Provisions and Contract Clauses
541.501 Solicitation provisions and contract clauses.
In addition to the solicitation terms, provisions and contract
clauses at FAR 41.501(c), the contracting officer shall include the
following clauses--
(a) 552.241-70, Availability of Funds for the Next Fiscal Year or
Quarter. As prescribed in 541.501, insert the clause 552.241-70,
Availability of Funds for the Next Fiscal Year or Quarter, instead of
FAR 52.232-19, in all utility acquisitions; and
(b) 552.241-71, Disputes (Utility Contracts). As prescribed in
541.501, insert clause 552.241-71, Disputes (Utility Contracts), in
solicitations and contracts for utility services subject to the
jurisdiction and regulation of a utility rate commission.
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2. The authority citation for 48 CFR part 552 continues to read as
follows:
Authority: 40 U.S.C. 121(c).
PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
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3. Add sections 552.241-70 and 552.241-71 to read as follows:
552.241-70, Availability of Funds for the Next Fiscal Year or Quarter.
As prescribed in 541.501, insert the clause 552.241-70,
Availability of Funds for the Next Fiscal Year or Quarter, instead of
FAR 52.232-19, in all utility acquisitions.
Availability of Funds for the Next Fiscal Year or Quarter (AUG 2010)
Funds are not presently available for performance under this
contract beyond ------------. The Government's obligation for
performance of this contract beyond that date is contingent upon the
availability of appropriated funds from which payment for contract
purposes can be made. No legal liability on the part of the Government
for any payment may arise for performance under this contract beyond --
----------, until funds are made available to the Contracting Officer
for performance and until the Contractor receives notice of
availability, to be confirmed in writing by the Contracting Officer.
(End of clause)
552.241-71 Disputes (Utility Contracts).
As prescribed in 541.501, insert clause 552.241-71, Disputes
(Utility Contracts), in solicitations and contracts for utility
services subject to the jurisdiction and regulation of a utility rate
commission.
Disputes (Utility Contracts) (AUG 2010)
The requirements of the Disputes clause at FAR 52.233-1 are
supplemented to provide that matters involving the interpretation of
tariffed retail rates, tariff rate schedules, and tariffed terms
provided under this contract are subject to the jurisdiction and
regulation of the utility rate commission having jurisdiction.
(End of clause)
[FR Doc. 2010-19724 Filed 8-11-10; 8:45 am]
BILLING CODE 6820-61-P