[Federal Register Volume 75, Number 21 (Tuesday, February 2, 2010)]
[Rules and Regulations]
[Pages 5241-5243]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2180]
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GENERAL SERVICES ADMINISTRATION
48 CFR Parts 512 and 552
[GSAR Amendment 2010-01; GSAR Case 2008-G504 (Change 43); Docket GSAR-
2010-0001; Sequence 1]
RIN 3090-AI61
General Services Administration Acquisition Regulation; Rewrite
of Part 512, Acquisition of Commercial Items
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 update
the text addressing the acquisition of commercial items. This rule is a
result of the GSAM Rewrite initiative undertaken by GSA to revise the
GSAM to maintain consistency with the Federal Acquisition Regulation,
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: March 4, 2010
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Mr. Michael O. Jackson, Procurement Analyst, at (202) 208-4949. For
[[Page 5242]]
information pertaining to status or publication schedules, contact the
Regulatory Secretariat (MVPR), Room 4041, 1800 F Street, NW.,
Washington, DC, 20405, (202) 501-4755. Please cite GSAR Amendment 2010-
01, GSAR case 2008-G504 (Change 43).
SUPPLEMENTARY INFORMATION:
A. Background
The GSAR Rewrite Project and Process
GSA published an Advance Notice of Proposed Rulemaking (ANPR) in
the Federal Register at 71 FR 7910 on February 15, 2006, with request
for comments on all parts of the GSAM. As a result, four comments were
received on GSAR part 512. These comments 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 44953 on August 1, 2008. The
public comment period for GSAR part 512 closed on September 30, 2008,
and no comments were received.
The Rewrite of GSAR Part 512
This final rule contains the revisions made to GSAR Part 512,
Acquisition of Commercial Items. The rule revises GSAR part 512 to
address the text at GSAR 512.301, Solicitation provisions and contract
clauses for the acquisition of commercial items. Section 512.203 has
been revised to add language regarding using GSAM part 512 for
construction contracts. GSAR clauses 552.212-70, Preparation of Offer
(Multiple Award Schedule), and 552.212-73, Evaluation--Commercial Items
(Multiple Award Schedule), are proposed for deletion from GSAR part 512
and proposed to be moved to GSAR Part 538, Federal Supply Schedule
Contracting, as these GSAR clauses are a better fit in GSAR part 538.
GSAR clauses 552.212-71, Contract Terms and Conditions Applicable to
GSA Acquisition of Commercial Items and 552.212-72, Contract Terms and
Conditions Required to Implement Statutes or Executive Orders
Applicable to GSA Acquisition of Commercial Items, are retained with no
changes.
Discussion of Comments
A proposed rule for the regulatory portion of the GSAM was
published in the Federal Register on August 1, 2008, at 73 FR 44953.
The public comment period for GSAR part 512 closed on September 30,
2008, and no comments were received. Four comments covering GSAR part
512 were received in response to the Advanced Notice of Proposed
Rulemaking. A discussion of these comments is provided below:
Comment: Add a clause to the GSAM that allows for use of FAR part
12 in relation to constructions or remodeling of real property.
Response: Section 512.203 has been revised to add language
regarding using GSAM part 512 for construction contracts.
Comment: Revise the GSAR to address inconsistencies and
duplications between and among GSA contract clauses and FAR part 12
that are often included in a single contract.
Response: The clauses were reviewed and any inconsistencies were
eliminated to the maximum extent possible.
Comment: Revise the GSAR to encourage contracting officers to
consider a vendor's commercial practices and policies during
negotiation of contract terms and conditions consistent with the
contracting officer's ability to tailor clauses under FAR 12.302.
Response: Current FAR part 12 requires contracting officers to
consider a vendor's commercial practices and policies during
negotiations of contract terms and conditions.
Comment: Revise the GSAR to eliminate inconsistencies and
redundancies between the FAR and GSAR in the context of a Federal
Supply Schedule, specifically citing Federal Supply Schedule 70.
Response: The Federal Supply Schedule clauses have been reviewed
and are being published in GSAM part 538. Inconsistencies and
redundancies between the FAR and GSAR were eliminated to the maximum
extent possible.
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.
This is not a substantive 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 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 512 and 552
Government procurement.
Dated: January 26, 2010.
David A. Drabkin,
Senior Procurement Executive, Office of Acquisition Policy, General
Services Administration.
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Therefore, GSA amends 48 CFR parts 512 and 552 as set forth below:
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1. The authority citation for 48 CFR parts 512 and 552 continues to
read as follows:
Authority: 40 U.S.C. 121(c).
PART 512--ACQUISITION OF COMMERCIAL ITEMS
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2. Revise section 512.301 to read as follows:
512.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
(a) Solicitation provisions and clauses. Insert these provisions or
clauses in solicitations or solicitations and contracts, respectively,
in accordance with the instructions provided:
(1) 552.212-71, Contract Terms and Conditions Applicable to GSA
Acquisition of Commercial Items, when listed clauses apply. The clause
provides for incorporation by reference of terms and conditions which
are, to the maximum extent practicable, consistent with customary
commercial practice. If necessary, tailor this clause.
(2) 552.212-72, Contract Terms and Conditions Required to Implement
Statutes or Executive Orders Applicable to GSA Acquisitions of
Commercial Items, when listed clauses apply. The clause provides for
the incorporation by reference of terms and conditions required to
implement provisions of law or executive orders that apply to
commercial item acquisitions.
(b) Discretionary use of GSAR provisions and clauses. Consistent
with the limitations contained in FAR 12.302(c), include in
solicitations and contracts by addendum other GSAR provisions and
clauses.
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(c) Use of additional provisions and clauses. The Senior
Procurement Executive must approve the use of a provision or clause
that is either not:
(1) Prescribed in the FAR or GSAR for use in contracts for
commercial items.
(2) Consistent with customary commercial practice.
(d) In solicitations issued in conjunction with the policy and
procedures in FAR part 14, Sealed Bidding; or FAR part 15, Contracting
by Negotiation, include the two notices in paragraphs (d)(1) and (d)(2)
of this section, except that acquisitions of leasehold interests in
real property, must include only the notice in paragraph (d)(1) of this
section.
(1) The information collection requirements contained in this
solicitation/contract are either required by regulation or approved by
the Office of Management and Budget pursuant to the Paperwork Reduction
Act and assigned OMB Control No. 3090-0163.
(2) The General Services Administration's hours of operation are 8
a.m. to 4:30 p.m. Requests for preaward debriefings postmarked or
otherwise submitted after 4:30 p.m. will be considered submitted the
following business day. Requests for postaward debriefings delivered
after 4:30 p.m. will be considered received and filed the following
business day.
PART 552--SOLICITATIONS PROVISIONS AND CONTRACT CLAUSES
552.212-70 [Removed and Reserved]
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3. Remove and reserve section 552.212-70.
552.212-73 [Removed and Reserved]
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4. Remove and reserve section 552.212-73.
[FR Doc. 2010-2180 Filed 2-1-10; 8:45 am]
BILLING CODE 6820-61-P