[Federal Register Volume 65, Number 42 (Thursday, March 2, 2000)]
[Rules and Regulations]
[Pages 11246-11249]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-4699]


=======================================================================
-----------------------------------------------------------------------

GENERAL SERVICES ADMINISTRATION

48 CFR Chapter 5

RIN 3090-AE90


General Services Administration Acquisition Regulation

AGENCY: Office of Acquisition Policy, GSA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The General Services Administration (GSA) is adopting as 
final, with changes, the interim rule published in the Federal Register 
at 64 FR 37200, July 9, 1999, the reissuance of the General Services 
Administration Acquisition Regulation (GSAR). GSA rewrote the GSAR in 
plain language, included only regulatory material, and removed internal 
agency guidance. GSA also updated the GSAR to reflect recent changes to 
the Federal Acquisition Regulation (FAR) The interim rule was effective 
September 1, 1999.
    GSA is also issuing final regulations providing guidance on 
selection criteria for architect-engineer contracts.

DATES: Effective March 10, 2000.

FOR FURTHER INFORMATION CONTACT: Gloria Sochon, GSA Acquisition Policy 
Division, (202) 208-6726.

SUPPLEMENTARY INFORMATION:

A. Background

    The GSAR, as reissued--

--Uses plain language to improve clarity and understanding.
--Reduces the amount of regulatory material.
--Eliminates internal operating procedures that do not have significant 
effect beyond GSA, or a significant cost or administrative impact on 
contractors or offerors.
--Eliminates guidance which merely implements or supplements the 
Federal Acquisition Regulation (FAR) without a significant cost or 
administrative impact on contracts or offerors, or an effect beyond 
GSA's internal operating procedures.
--Updates GSA rules for consistency with recent Federal Acquisition 
Regulation (FAR) changes.

    GSA published and interim rule in the Federal Register on July 9, 
1999 (64 FR 37200). One respondent submitted comments in response to 
the interim rule. GSA considered those comments in developing the final 
rule. The changes in this rule:

--Update references to the GSA Order on use of the credit card to 
reflect the new order issued by GSA on September 1, 1999, and updating 
related procedures. The changes include updating the clause at section 
552.232-77 to reflect Federal Supply Service (FSS) requirements that 
FSS contractors accept payment by the Govermentwide commercial purchase 
card for orders that do not exceed the micropurchase threshold.
--Correct an error at section 515.408 in a reference to the clause to 
section 552.215-72.
--Update the warranty clause applicable to multiple award schedule 
contracts to apply to both domestic and overseas locations and deletes 
the clause applicable to international multiple award schedules to 
reflect updated Federal Supply Schedule programs.
--Correct a typographical error at section 552.209-70.
--Revise section 552.216-70 to eliminate a duplicated paragraph.
--Revise section 552.232-76 to clarify that electronic funds transfer

[[Page 11247]]

payments under acquisitions of leasehold interests in real property 
occur through the Automated Clearing House.
--Clarify protest procedures on exchange of information between the 
parties.
--Update section 552.247-71 to refer to common rates instead of 
tariffs. GSA also published a proposed rule in the Federal Register on 
August 17, 1999 (64 FR 44683) on selection criteria for architect-
engineer contracts. No public comments were submitted on the proposed 
rule. The final rule clarifies the requirement to establish a 
significant production capability in the general geographical area of 
the project and makes editorial changes into plain language.

B. Executive Order 12866

    This order was not subject to Office of Management and Budget 
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.

C. Regulatory Flexibility Act

    GSA 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. The 
GSAR rewrite adds guidance on disclosure and use of proprietary 
information when GSA will release proposals outside the Government for 
evaluation and provided a contract clause to ensure that evaluation 
contractors protect proposal information appropriately. The rewrite 
also adds GSA agency protest procedures. These procedures offer vendors 
an alternate forum which is quicker and less expensive than protests to 
the General Accounting Office or the Courts. The guidance on use of 
selection criteria for architect-engineer contracts eliminates 
unnecessary restrictions to competition in GSA's use of geographic 
limitations in the evaluation process for these contracts. The other 
revisions do not add any new requirements; but reduce the number of 
agency regulations, restate existing requirements in plain language, 
and provide consistency with the FAR. These revisions streamline GSA 
acquisition rules, provide greater flexibility, and promote 
understanding.

D. Paperwork Reduction Act

    The reissued GSAR contains information collection requirements 
subject to the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) which 
were approved previously by OMB and assigned the control numbers shown 
in section 501.106.

E. Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule under 5 U.S.C. 804. This rule was 
submitted to Congress and GAO under 5 U.S.C. 801.

List of Subjects in 48 CFR Chapter 5

    Government procurement.

Interim Rule Adopted as Final With Changes

    Accordingly, GSA adopts the interim rule reissuing 48 CFR Chapter 
5, which was published in the Federal Register on July 9, 1999 (64 FR 
37200), as final with the following changes:
    1. The authority citation for 48 CFR Parts 513, 515, 532, 536, 546, 
and 552 continues to read as follows:

    Authority:  40 U.S.C. 486(c).

PART 513--SIMPLIFIED ACQUISITION PROCEDURES

    2. In section 513.302-70, revise paragraph (a) to read as follows:


513.302-7  Purchase order and related forms.

    (a) See GSA Order, Guidance on Use of the Credit Card for Purchases 
(CFO 4200.1), for forms required for purchase card actions.
* * * * *

PART 515--CONTRACTING BY NEGOTIATION

    3. In section 515.408, revise paragraph (d) to read as follows:


515.408  Solicitation provisions and contract clauses.

* * * * *
    (d) Insert the clause at 552.215-72, Price Adjustment--Failure 
to Provide Accurate Information, in solicitations and contracts 
under the MAS program.
* * * * *

PART 532--CONTRACT FINANCING

    4. Revise sections 532.7002 and 532.7003 to read as follows:


532.7002   Solicitation requirements.

    (a) In solicitations for supplies and services, except FSS schedule 
solicitations, request offerors to indicate if they will accept payment 
by Governmentwide commercial purchase card. Identify the card brand(s) 
under the GSA SmartPay program that may be used to make payments under 
the contract, on the cover page or in Section L of the solicitation.
    (b) For FSS schedule contracts, identify the card brand(s) under 
the GSA SmartPay program that may be used to make payments under the 
contract in the contract award letter.
    (c) For orders placed by GSA, you may authorize payment by 
Governmentwide commercial purchase card only for orders that do not 
exceed $100,000 (see GSA Order, Guidance on Use of the Credit Card for 
Purchases (CFO 4200.1)).
    (d) Consider requesting offerors to designate different levels for 
which they may accept payment by Governmentwide commercial purchase 
card, for example:

    ``If awarded a contract under this solicitation, the offeror 
agrees to accept payment by Governmentwide commercial purchase card 
for orders of:

--$2,500 or less
--$25,000 or less
--$50,000 or less
--$100,000 or less''


532.7003  Contract Clause.

    (a) Indefinite-delivery, indefinite-quantity (IDIQ) contracts other 
than Federal Supply Service. Insert the clause at 552.232-77, Payment 
by Governmentwide Commercial Purchase Card, in IDIQ solicitations and 
contracts for supplies and services if the contract will provide for 
payment by Governmentwide commercial purchase card as an alternative 
method of payment for orders.
    (b) Federal Supply Service Contracts. Use Alternate I of the clause 
at 552.232-77 for all FSS schedule solicitations and contracts. You may 
use the clause in other FSS IDIQ contract as appropriate.

PART 536--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

    5. Add subpart 536.6 to read as follows:

SUBPART 536.6--ARCHITECT-ENGINEER SERVICES


536.602  Selection of firms for architect-engineer contracts.


536.602-1  Selection criteria.

    (a) FAR 36.602-1 requires that agencies include ``location in the 
general geographical area of the project and knowledge of locality of 
the project'' as one of several selection criteria.
    (1) Do not use this evaluation factor as a minimum qualification 
requirement for determining whether a firm is eligible to compete for a 
proposed project.
    (2) This factor must not exceed 5 percent of the total weight of 
all evaluation criteria. In order to receive maximum score for this 
factor, the

[[Page 11248]]

architect-engineer firm(s) must demonstrate that at least 35 percent of 
the architect-engineer contract services (based on the total contract 
price) will be accomplished within the geographical boundaries 
established for the project.
    (3) Under an approved class deviation from FAR 36.602-1(a)(5), this 
factor does not apply to projects that the Chief Architect of GSA 
determines have national significance.
    (b) The public announcement (Commerce Business Daily notice) for a 
proposed project should identify the general geographical area of the 
project by either:
    (1) A radius in miles or other appropriate unit of measure.
    (2) The Standard Metropolitan Statistical Area, county(ies), 
state(s) surrounding the project, or other appropriate geographic 
boundaries.
    (c) Architect-engineer selections under the Design Excellence 
Program must apply the geographical evaluation criteria in the second 
phase.
    (d) The public announcement (Commerce Business Daily notice) must 
provide the number of calendar days the architect-engineer of record 
has to establish a production capability within the general 
geographical area of the project. You may allow the architect-engineer 
of record up to 45 calendar days after contract award to establish this 
production capability.

PART 546--QUALITY ASSURANCE

    6. In section 546.710, revise paragraph (b) to read as follows, 
remove paragraph (c), and redesignate paragraphs (d) and (e) as 
paragraphs (c) and (d) respectively:


546.710  Contract clauses.

* * * * *
    (b) Multiple award schedules. Insert the clause at 552.246-73, 
Warranty--Multiple Award Schedule, in solicitations and contracts.
* * * * *

PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    7.-9. Amend section 552.232-76 to revise the date and paragraph 
(b)(1) to read as follows:


552.232-76  Electronic Funds Transfer Payment.

ELECTRONIC FUNDS TRANSFER PAYMENT (MAR 2000)
* * * * *
    (b) * * *
    (1) The American Bankers Association 9-digit identifying number for 
Automated Clearing House (ACH) transfers of the financing institution 
receiving payment if the institution has access to the Federal Reserve 
Communications System.
* * * * *

    10. Revised section 552.232-77 to read as follows:


552.232-77  Payment By Governmentwide Commercial Purchase Card.

PAYMENT BY GOVERNMENTWIDE COMMERCIAL PURCHASE CARD (MAR 2000)

    (a) Definitions. ``Governmentwide commercial purchase card'' 
means a uniquely numbered credit card issued by a contractor under 
GSA's Governmentwide Contract for Fleet, Travel, and purchase Card 
Services to named individual Government employees or entities to pay 
for official Government purchases.
    ``Oral order'' means an order placed orally either in person or 
by telephone.
    (b) At the option of the Government and if agreeable to the 
Contractor, payments of ______*__ or less for oral or written orders 
may be made using the Governmentwide commercial purchase card.
    (c) The Contractor shall not process a transaction for payment 
through the credit card clearinghouse until the purchased supplies 
have been shipped or services performed. Unless the cardholder 
requests correction or replacement of a defective or faulty item 
under other contract requirements, the Contractor must immediately 
credit a cardholder's account for items returned as defective or 
faulty.
    (d) Payments made using the Governmentwide commercial purchase 
card are not eligible for any negotiated prompt payment discount. 
Payment made using a Government debit card will receive the 
applicable prompt payment discount.
(End of clause)
    *Enter amount not to exceed $100,000.
    Alternate I (MAR 2000). For FSS schedule solicitations and 
contracts, replace paragraph (b) of the basic clause and add 
paragraph (c) as follows. Redesignate paragraphs (c) and (d) of the 
basic clause as (d) and (e) respectively.
    (b) The Contractor must accept the Governmentwide commercial 
purchase card for payments equal to or less than the micro-purchase 
threshold (see Federal Acquisition Regulation 2.101) for oral or 
written orders under this contract.
    (c) The Contractor and the ordering agency may agree to use the 
Governmentwide commercial purchase card for dollar amounts over the 
micro-purchase threshold, and the Government encourages the 
Contractor to accept payment by the purchase card. The dollar value 
of a purchase card action must not exceed the ordering agency's 
established limit. If the Contractor will not accept payment by the 
purchase card for an order exceeding the micro-purchase threshold, 
the Contractor must so advise the ordering agency within 24 hours of 
receipt of the order.

    11. Amend section 552.233-70 to revise the clause date and 
paragraphs (h)(4) and (h)(5) to read as follows, and to remove 
paragraph (h)(6):


552.233-70  Protests Filed Directly with the General Services 
Administration.

PROTESTS FILED DIRECTLY WITH THE GENERAL SERVICES ADMINISTRATION (MAR 
2000)

* * * * *
    (h) * * *
    (4) Except as provided in paragraph (5)(ii) below, the parties 
are encouraged, but not required, to exchange information submitted 
to the Agency Protest Official for GSA.
    (5) If the agency makes a written response to the protest, the 
following filling requirements apply unless the deciding official 
approves other arrangements:
    (i) The agency must file its response to the protest with the 
deciding official within five (5) days after the filing of the 
protest.
    (ii) The agency must also provide the protester with a copy of 
the response on the same day it files the response with the deciding 
official. If the agency believes it needs to redact or withhold any 
information in the response from the protester, it must obtain the 
approval of the deciding official.
* * * * *

    12. Revise section 552.246-73 to read as follows:


552.246-73  Warranty--Multiple Award Schedule.

WARRANTY--MULTIPLE AWARD SCHEDULE (MAR 2000)

    (a) Applicable to domestic locations. Unless specified otherwise 
in this contract, the Contractor's standard commercial warranty as 
stated in the Contractor's commercial price list applies to this 
contract.
    (b) Applicable to overseas destinations. Unless specified 
otherwise in this contract, the Contractor's standard commercial 
warranty as stated in the commercial price list applies to this 
contract, except as follows:
    (1) The Contractor must provide, at a minimum, a warranty on all 
non-consumable parts for a period of 90 days from the date that the 
Government accepts the product.
    (2) The Contractor must supply parts and labor required under 
the warranty provisions free of charge.
    (3) The Contractor must bear the transportation costs of 
returning the products to and from the repair facility, or the costs 
involved with Contractor personnel traveling to The Government 
facility for the purpose of repairing the product onsite, during the 
90-day warranty period.


552.246-74  [Removed]

(End of clause)

    13. Remove and reserve section 552.246-74

    14. Revise the prescription at section 552.246-75 to read as 
follows:

[[Page 11249]]

552.246-75  Guarantees.

    As prescribed in 546.710(c), insert the following clause.
* * * * *

    15. Revise the prescription at section 552.246-76 to read as 
follows:


552.246-76  Warranty of Pesticides.

    As prescribed in 546.710(d), insert the following clause:
* * * * *

    16. Amend section 552.247-71 to revise the clause date and 
paragraph (c)(2) to read as follows:


552.247-71  Diversion of Shipment Under f.o.b. Destination Contracts.

* * * * *

DIVERSION OF SHIPMENT UNDER F.O.B. DESTINATION CONTRACTS (MAR 2000)

* * * * *
    (c) * * *
    (2) If (i) shipments to the new destination are made by the 
Contractor's owned or leased trucks or (ii) shipments to the 
original destination were or would have been made by the 
Contractor's owned or leased trucks, the Government shall determine 
the adjustment by substituting a rate equal to 70 percent of the 
lowest applicable rate published in common carrier rates as of the 
date of shipment for the Contractor's actual rate or contemplated 
transportation costs.
* * * * *

    Dated: February 18, 2000.
J. Les Davison,
Acting Deputy Associate Administrator for Acquisition Policy.
[FR Doc. 00-4699 Filed 3-1-00; 8:45 am]
BILLING CODE 6820-61-M