[Federal Register Volume 72, Number 21 (Thursday, February 1, 2007)]
[Rules and Regulations]
[Pages 4649-4655]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-1641]


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GENERAL SERVICES ADMINISTRATION

48 CFR Parts 511, 516, 532, 538, 546, and 552

[Amendment 2007-01; GSAR Case 2006-G522; Change 18 Docket 2007-0003, 
Sequence 1]
RIN 3090-AI32


General Services Acquisition Regulation; Federal Supply Schedule 
Contracts-Recovery Purchasing by State and Local Governments Through 
Federal Supply Schedules

AGENCY: Office of the Chief Acquisition Officer, Contract Policy 
Division, General Services Administration (GSA).

ACTION: Interim rule with request for comments.

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SUMMARY: The General Services Administration (GSA) is amending the 
General Services Administration Acquisition Regulation (GSAR) to 
implement Section 833 of the John Warner National Defense Authorization 
Act for Fiscal Year 2007 (Pub. L. 109-364). Section 833 amends 40 
U.S.C. 502 to authorize the Administrator of General Services to 
provide to State and local governments the use of Federal Supply 
Schedules of the GSA for purchase of products and services to be used 
to facilitate recovery from a major disaster, terrorism or nuclear, 
biological, chemical, or radiological attack.

DATES: Effective Date: February 1, 2007.
    Comment Date: Interested parties should submit comments in writing 
to the Regulatory Secretariat at the address shown below on or before 
April 2, 2007 to be considered in the formulation of a final rule.

ADDRESSES: Submit comments identified by Amendment 2007-01, GSAR case 
2006-G522, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Search for any document by first selecting the proper document types 
and selecting ``General Services Administration'' as the agency of 
choice. At the ``Keyword'' prompt, type in the GSAR case number (for 
example, GSAR case 2006-G522) and click on the ``Submit'' button. 
Please include any personal and/or business information inside the 
document.
    You may also search for any document by clicking on the ``Advanced 
search/document search'' tab at the top of the screen, selecting from 
the agency field ``General Services Administration,'' and typing the 
GSAR case number in the keyword field. Select the ``Submit'' button.
     Fax: 202-501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (VIR), 1800 F Street, NW., Room 4035, ATTN: Laurieann 
Duarte, Washington, DC 20405.
    Instructions: Please submit comments only and cite GSAR case 2006-
G522, in all correspondence related to this case. All comments received 
will be posted without change to http://www.regulations.gov, including 
any personal and/or business confidential information provided.

FOR FURTHER INFORMATION CONTACT: Mr. William Clark, Procurement 
Analyst, at (202) 219-1813, for clarification of content. Please cite 
Amendment 2007-01, GSAR case 2006-G522. For information pertaining to 
status or publication schedules, contact the Regulatory Secretariat at 
(202) 501-4755.

SUPPLEMENTARY INFORMATION:

A. Background

    The Federal Supply Schedule Program, which is directed and managed 
by GSA, is designed to provide Federal agencies with a simplified 
process of acquiring commonly used commercial supplies and services at 
prices associated with volume buying. Ordering activities conduct 
streamlined competitions among a number of schedule contractors, issue 
orders directly with the selected contractor, and administer orders.
    This interim rule amends GSAR Parts 511, 516, 532, 538, 546, and 
552 to implement Section 833 of the John Warner National Defense 
Authorization Act for Fiscal Year 2007 (Pub. L. 109-364). Section 833 
amends 40 U.S.C. 502

[[Page 4650]]

to authorize the Administrator of General Services to provide to State 
and local governments the use of Federal Supply Schedules of the GSA 
for purchase of products and services to be used to facilitate recovery 
from a major disaster declared by the President under the Robert T. 
Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 
et seq.) or to facilitate recovery from terrorism or nuclear, 
biological, chemical, or radiological attack. Section 833 requires the 
Secretary of Homeland Security to determine which products and services 
qualify before the Administrator provides for the use of the Federal 
Supply Schedules. House Report 109-452 of the Committee on Armed 
Services indicates that Section 833 builds on the implementation of the 
Cooperative Purchasing Program authorized in Section 211 of the E-
Government Act of 2002 (Pub. L. 107-347), which opened GSA's 
information technology schedule, Schedule 70, for use by State and 
local governments.
    ``State and local government entities,'' means the states of the 
United States, counties, municipalities, cities, towns, townships, 
tribal governments, public authorities (including public or Indian 
housing agencies under the United States Housing Act of 1937), school 
districts, colleges and other institutions of higher education, council 
of governments (incorporated or not), regional or interstate government 
entities, or any agency or instrumentality of the preceding entities 
(including any local educational agency or institution of higher 
education), and including legislative and judicial departments. The 
term does not include contractors of, or grantees of, State or local 
governments.
    (1) ``Local educational agency'' has the meaning given that term in 
section 8013 of the Elementary and Secondary Education Act of 1965 (20 
U.S.C. 7713).
    (2) ``Institution of higher education'' has the meaning given that 
term in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 
1001(a)).
    (3) ``Tribal government'' means--
    (i) The governing body of any Indian tribe, band, nation, or other 
organized group or community located in the continental United States 
(excluding the State of Alaska) that is recognized as eligible for the 
special programs and services provided by the United States to Indians 
because of their status as Indians; and
    (ii) Any Alaska Native regional or village corporation established 
pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et 
seq.).
    Eligible state or local government ordering activities are 
encouraged to use the ordering procedures outlined in Federal 
Acquisition Regulation (FAR) Subpart 8.4 (48 CFR Chapter 1, Subpart 
8.4) when placing an order against Federal Supply Schedules contracts.
    This interim rule establishes a new GSAR Subpart 538.71 and amends 
associated clauses to address recovery purchasing from supply schedules 
by eligible non-federal organizations. Among other things, the rule 
defines the scope of recovery purchasing, its usage, and applicable 
terms and conditions, including payment and the handling of disputes.
    Scope. State and local governments are authorized to use Federal 
Supply Schedules to procure products and services determined by the 
Secretary of Homeland Security to facilitate recovery from major 
disasters, terrorism, or nuclear, biological, chemical, or radiological 
attack. This authority is limited to GSA's Multiple Award Schedule 
contracts and does not include any other GSA programs. A listing of the 
Federal Supply Schedules for the products and services is available in 
GSA's Schedules e-Library at Web site http://www.gsaelibrary.gsa.gov. 
The State or local government ordering activity is responsible for 
ensuring that only authorized representatives of their governments 
place orders and that purchased products or services are used to 
facilitate recovery from major disasters or attacks for the purposes 
stated in Section 833.
    Voluntary use. The authority provided in this rule is available for 
use on a voluntary (i.e., non-mandatory) basis. In other words, 
businesses with schedule contracts which contain items for recovery 
purchasing have the option of deciding whether they will accept orders 
placed by State or local government buyers. Existing schedule contracts 
which contain items for recovery purchasing may be modified only by 
mutual agreement of the parties. After an existing contract has been 
modified, a schedule contractor still retains the right to decline 
orders by State or local government buyers on a case-by-case basis. 
Future schedule contractors will also be able to decline orders on a 
case-by-case basis. Schedule contractors may decline any order, for any 
reason, within a 5-day period of receipt of the order (See GSAR 
552.238-78). Similarly, the rule places no obligation on State and 
local government buyers. They will have full discretion to decide if 
they wish to make a Federal Supply Schedule purchase, subject, however, 
to any limitations that may be established under State and local law 
and procedures.
    Defined terms and conditions. Under new GSAR clause 552.238-80, Use 
of Federal Supply Schedule Contracts by Certain Entities-Recovery 
Purchasing, which will be incorporated into covered schedule contracts 
of participating contractors, a new contract will be formed when the 
schedule contractor accepts an order from a State or local government. 
However, with certain exceptions provided in this rule, terms and 
conditions of the underlying schedule contract will be incorporated by 
reference into the new contract between the State or local government 
and the contractor. A State and local government ordering activity may 
include terms and conditions required by statute, ordinance, 
regulation, or order to the extent that these terms and conditions do 
not conflict with the terms and conditions of the Schedule contract.
    With respect to payment, this rule amends the GSAR to make the 
clause at 552.232-81, Payments by Non-Federal Ordering Activities, 
applicable to Federal Supply Schedules for recovery purchasing. The 
clause provides that the terms and conditions of a State's prompt 
payment law apply to orders placed by eligible non-Federal ordering 
activities. If the ordering activity is not otherwise subject to a 
State prompt payment law, the activity would be covered by the Federal 
Prompt Payment Act, 31 U.S.C. 3901, et seq., as implemented in FAR 
Subpart 32.9, in the same manner as Federal ordering activities.
    The Federal Government will not be liable for the performance or 
nonperformance of contracts established under the authority of this 
rule between schedule contractors and eligible non-federal entities. 
Disputes that cannot be resolved by the parties to the new contract can 
be litigated in any State or Federal court with jurisdiction over the 
parties, using principles of Federal procurement law and the Uniform 
Commercial Code, as applicable and appropriate.
    The prices of supplies and services available on schedule contracts 
include an industrial funding fee. The fee covers the administrative 
costs incurred by GSA to operate the Schedules program. The fee will be 
periodically adjusted as necessary to recover the cost of operating the 
program.
    Advance Purchasing. State and local governments may use the Federal 
Supply Schedule contracts to purchase products or services in advance 
of a major disaster declared by the President under the Robert T. 
Stafford Disaster Relief and Emergency Assistance Act

[[Page 4651]]

(42 U.S.C. 5121 et seq.) or terrorist, nuclear, biological, chemical, 
or radiological attack. In the aftermath of emergency events, State or 
local governments' systems may be disrupted. Thus, use of Federal 
Supply schedule contracts prior to these events to acquire products or 
services to be used to facilitate recovery is authorized. The State or 
local government will be responsible for ensuring that purchased 
products or services are to be used to facilitate recovery.
    Transactional data. GSA anticipates a need for specific information 
regarding recovery purchasing. Quality transactional data will allow 
for effective program measurement and improvement. GSA is interested in 
comments on the schedule contractors' ability to report data elements 
such as items and quantities sold, prices, and State or local 
government placing the order. GSA also is interested in hearing 
industry's perspective on the best way to capture this data.

B. Unfunded Mandates Reform Act and Executive Order 13132

    The following statutes and Executive orders do not apply to this 
rulemaking: Unfunded Mandates Reform Act of 1995; Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments; 
and Executive Order 13132, Federalism.

C. Regulatory Flexibility Act

    The changes may 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 interim rule will 
affect large and small entities including small businesses that are 
awarded schedule contracts for recovery purchasing, under the GSA 
Federal Supply Schedule program; non-schedule contractors, including 
small businesses, contracting with State or local governments; and 
small governmental jurisdictions that will be eligible to place orders 
under schedule contracts for recovery purchasing.
    An Initial Regulatory Flexibility Analysis (IRFA) has been 
prepared. The analysis is summarized as follows:

    1. Description of the reasons why action by the agency is being 
considered.
    To implement section 833, Use of Federal Supply Schedules by 
State and Local Governments for Goods and Services for Recovery from 
Natural Disasters, Terrorism, or Nuclear, Biological, Chemical, or 
Radiological Attack, of the John Warner National Defense 
Authorization Act for Fiscal Year 2007 (Public Law 109-364). Section 
833 amends section 502 of title 40, United States Code, to authorize 
the Administrator to provide for use by State or local governments 
of Federal Supply Schedules of the General Services Administration 
for products or services that are to be used to facilitate recovery 
from a major disaster declared by the President under the Robert T. 
Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 
5121 et seq.) or to facilitate recovery from terrorism or nuclear, 
biological, chemical, or radiological attack. The rule opens Federal 
Supply Schedule contracts for recovery purchasing, for use by other 
governmental entities to enhance intergovernmental cooperation.
    2. Succinct statement of the objectives of, and legal basis for 
the interim rule.
    The interim rule will implement section 833 of the John Warner 
National Defense Authorization Act for Fiscal Year 2007 (Public Law 
109-364) with the objective of opening Federal Supply Schedule 
contracts for use by other governmental entities to enhance 
intergovernmental cooperation. The goal of the new rule is to make 
``government'' (considering all levels) more efficient by reducing 
duplication of effort and utilizing volume purchasing techniques for 
the acquisition products and services determined by the Secretary of 
Homeland Security to facilitate recovery from a major disaster, 
terrorism, or nuclear, biological, chemical, or radiological attack.
    3. Description of, and where feasible, estimate of the number of 
small entities to which the interim rule will apply.
    The rule will affect large and small entities including small 
businesses that are awarded schedule contracts for recovery 
purchasing, under the GSA Federal Supply Schedule program; non-
schedule contractors, including small businesses, contracting with 
State or local governments; and small governmental jurisdictions 
that will be eligible to place orders under schedule contracts for 
recovery purchases. Approximately 80 percent (12,494) of GSA 
Schedule contractors are small businesses and they accounted for 37 
percent of the sales under the Schedules program for Fiscal Year 
2005. All of the small business contractors under the Schedules for 
recovery purchasing will be allowed, at the schedule contractor's 
option, to accept orders from State and local governments. 
Obviously, the expanded authority to order from Schedule contracts 
for recovery purchasing could increase the sales of small business 
schedule contractors. It is difficult to identify the number of non-
schedule small businesses that currently sell directly to State and 
local governments. The ability of governmental entities to use 
Schedule contracts for recovery purchasing, may affect the 
competitive marketplace in which those small businesses operate. 
State and local government agencies could realize lower prices on 
some products and services, less administrative burden and shortened 
procurement lead times. The rule does not affect or waive State or 
local government preference programs. Finally, small governmental 
jurisdictions will also be affected Counties, incorporated 
municipalities, minor subdivisions, public housing authorities, 
school districts, public educational institutions of higher 
learning, and Indian tribal governments would be among those 
affected if they chose to order from Schedule contracts for recovery 
purchasing. Federal Supply Schedule contracts are negotiated as 
volume purchase agreements, with generally very favorable pricing. 
The ability of small governmental entities to order from Schedule 
contracts for recovery purchasing holds out the potential for 
significant cost savings for those organizations as well as 
providing alternative sources of goods and services in case their 
usual and customary sources of supply are interrupted in the 
aftermath of the disaster.
    4. Description of projected reporting, recordkeeping, and other 
compliance requirements of the rule, including an estimate of the 
classes of small entities that will be subject to the requirement 
and the type of professional skills necessary for preparation of the 
report or record.
    The interim rule makes changes in certain provisions or clauses 
in order to recognize the fact that authorized non-federal ordering 
activities may place orders under the contract. The Office of 
Management and Budget under the Paperwork Reduction Act has 
previously approved these clauses and the changes do not impact the 
information collection or recordkeeping requirements.
    5. Identification, to the extent practicable, of all relevant 
Federal rules that may duplicate, overlap or conflict with the rule.
    The interim rule does not duplicate, overlap, or conflict with 
any other Federal rules.
    6. Description of any significant alternatives to the interim 
rule that accomplish the stated objectives of applicable statutes 
and that minimize any significant economic impact of the rule on 
small entities.
    There are no practical alternatives that will accomplish the 
objective of this rule.

    The Regulatory Secretariat has submitted a copy of the IRFA to the 
Chief Counsel for Advocacy of the Small Business Administration. 
Interested parties may obtain a copy from the Regulatory Secretariat. 
The Councils will consider comments from small entities concerning the 
affected GSAR Parts 511, 516, 532, 538, and 552 in accordance with 5 
U.S.C. 610. Interested parties must submit such comments separately and 
should cite 5 U.S.C 601, et seq. (Amendment 2007-01, GSAR case 2006-
G522), in correspondence.

D. Paperwork Reduction Act

    The Paperwork Reduction Act (Pub. L. 104-13) applies because the 
interim rule contains information collection requirements. The new 
clause at 552.238-80, Use of Federal Supply Schedule Contracts by 
Certain Entities-Recovery Purchasing, provides for the contractor to 
report the quarterly dollar value of all sales under the contract to 
State and local governments, which includes any State, local, regional 
or tribal government or any instrumentality thereof (including any 
local educational agency or institution of higher learning). The 
records required

[[Page 4652]]

for reporting are the same as those normally maintained by a contractor 
in the commercial world and do not represent a Government-unique 
recordkeeping requirement. Therefore, the estimated burden for this 
clause under the Paperwork Reduction Act is zero. GSA has a blanket 
approval under OMB Control Number 3090-0250 from Office of Management 
and Budget for information collections with a zero burden estimate.

E. Determination To Issue an Interim Rule

    A determination has been made under the authority of the 
Administrator of General Services (GSA) that urgent and compelling 
reasons exist to promulgate this interim rule without prior opportunity 
for public comment. This action is necessary to implement Section 833 
of the John Warner National Defense Authorization Act for Fiscal Year 
2007 (Pub. L. 109-364), signed by the President on October 17, 2006. 
The law requires the Administrator of General Services to establish 
procedures to implement Section 833 not later than 30 days after the 
date of the enactment of the Act. GSA wishes to obtain public comments 
on the changes. Due to the statutory deadline, the rule is being issued 
as an interim rule rather than as a proposed rule.
    Comments received in response to the publication of this interim 
rule will be considered in formulating the final rule.

List of Subjects in 48 CFR Parts 511, 516, 532, 538, 546, and 552

    Government procurement.

    Dated: January 29, 2007.
Roger D. Waldon,
Acting Senior Procurement Executive, Office of the Chief Acquisition 
Officer.

0
Therefore, GSA amends 48 CFR parts 511, 516, 532, 538, 546, and 552 as 
set forth below:
0
1. The authority citation for 48 CFR parts 511, 516, 532, 538, 546, and 
552 continues to read as follows:

    Authority: 40 U.S.C. 121(c).

PART 511--USING AND MAINTAINING REQUIREMENTS DOCUMENTS

0
2. Revise paragraphs (c)(3) and (d) of section 511.204 to read as 
follows:


511.204  Solicitation provisions and contract clauses.

* * * * *
    (c) * * *
    (3) Include the clause at 552.211-75, Preservation, Packaging and 
Packing, in solicitations and contracts for supplies expected to exceed 
the simplified acquisition threshold. You may also include the clause 
in contracts estimated to be at or below the simplified acquisition 
threshold when appropriate. Use Alternate I in solicitations and 
contracts for--
    (i) FSS Schedule 70 and the Consolidated Products and Services 
Schedule containing information technology Special Item Numbers; or
    (ii) Federal Supply Schedules for recovery purchasing (See 
538.7102).
* * * * *
    (d) Supply contracts. Include the clause at 552.211-77, Packing 
List, in solicitations and contracts for supplies, including purchases 
over the micropurchase threshold. Use Alternate I in solicitations and 
contracts for--
    (1) FSS Schedule 70 and the Consolidated Products and Services 
Schedule containing information technology Special Item Numbers; or
    (2) Federal Supply Schedules for recovery purchasing (See 
538.7102).

PART 516--INDEFINITE-DELIVERY CONTRACTS

0
3. Amend section 516.506 by--
0
a. Redesignating paragraph (d) as (e);
0
b. Adding a new paragraph (d); and
0
c. Amending the newly designated paragraph (e) by revising the last 
sentence.
    The added and revised text reads as follows:


516.506  Solicitation provisions and contract clauses.

* * * * *
    (d) In solicitations and contracts for Federal Supply Schedules for 
recovery purchasing (See 538.7102), use 552.216-72, Placement of 
Orders, Alternate IV, instead of Alternate II.
    (e) * * * Use 552.216-73 Alternate II when 552.216-72 Alternate II, 
Alternate III, or Alternate IV are prescribed.

PART 532--CONTRACT FINANCING

0
4. Amend section 532.206 by revising paragraphs (a) and (b) to read as 
follows:


532.206  Solicitation provisions and contract clauses.

    (a) Discounts for prompt payment. Include 552.232-8, Discounts for 
Prompt Payments, in multiple award schedule solicitations and contracts 
instead of the clause at Federal Acquisition Regulation 52.232-8. Use 
Alternate I in solicitations and contracts for--
    (1) FSS Schedule 70 and the Consolidated Products and Services 
Schedule containing information technology Special Item Numbers (SINs); 
or
    (2) Federal Supply Schedules for recovery purchasing (See 
538.7102).
    (b) The contracting officer shall insert the clause at 552.232-81, 
Payments by Non-Federal Ordering Activities, in solicitations and 
schedule contracts for--
    (1) FSS Schedule 70 and Consolidated Products and Services Schedule 
contracts containing information technology SINs; or
    (2) Federal Supply Schedules for recovery purchasing (See 
538.7102).
* * * * *

0
5. Amend section 532.7003 by revising paragraphs (b) and (c) to read as 
follows:


532.7003  Contract clause.

* * * * *
    (b) Federal Supply Schedule contracts. Use Alternate I of the 
clause at 552.232-77 for all FSS schedule solicitations and contracts, 
except for--
    (1) Federal Supply Schedule 70, Information Technology, and the 
Consolidated Products and Services Schedule contracts containing 
information technology Special Item Numbers; or
    (2) Federal Supply Schedule contracts for recovery purchasing (See 
538.7102).
    (c) Federal Supply Schedule contracts for information technology 
Special Item Numbers or Federal Supply Schedules for recovery 
purchasing (See 538.7102). In solicitations and contracts for (1) FSS 
Schedule 70 and the Consolidated Products and Services Schedule 
containing information technology Special Item Numbers; or (2) Federal 
Supply Schedule contracts for recovery purchasing (See 538.7102), use 
552.232-79 instead of 552.232-77.

PART 538--FEDERAL SUPPLY SCHEDULE CONTRACTING

0
6. Amend section 538.273 by revising paragraphs (a)(2) and (b)(2) to 
read as follows:


538.273  Contract clauses.

    (a) * * *
    (2) 552.238-71, Submission and Distribution of Authorized FSS 
Schedule Pricelists. In solicitations and contracts for:
    (i) FSS Schedule 70 and the Consolidated Products and Services 
Schedule contracts containing information technology Special Item 
Numbers; or
    (ii) Federal Supply Schedule contracts for recovery purchasing (See 
538.7102), use Alternate I. If GSA is not prepared to accept electronic 
submissions for a particular schedule delete--
    (A) The paragraph identifier ``(i)'' in (b)(1) and the word ``and'' 
at the end of paragraph (b)(1)(i); and

[[Page 4653]]

    (B) Paragraphs (b)(1)(ii) and (b)(3).
* * * * *
    (b) * * *
    (2) 552.238-75, Price Reductions. Use Alternate I in solicitations 
and contracts for--
    (i) FSS Schedule 70 and the Consolidated Products and Services 
Schedule contracts containing information technology Special Item 
Numbers; or
    (ii) Federal Supply Schedule contracts for recovery purchasing (See 
538.7102).

0
7. Add Subpart 538.71, consisting of sections 538.7100 thru 538.7104, 
to read as follows:
Sec.
538.7100 Scope of subpart.
538.7101 Definitions.
538.7102 General.
538.7103 Policy.
538.7104 Solicitation provisions and contract clauses.

Subpart 538.71--Recovery Purchasing


538.7100  Scope of subpart.

    This subpart prescribes policies and procedures to implement the 
John Warner National Defense Authorization Act for Fiscal Year 2007 
(Pub. L. 109-364) authorizing non-federal organizations to use Federal 
Supply Schedule contracts to purchase products and services to be used 
for recovery from major disasters, terrorism or nuclear, biological, 
chemical, or radiological attack.


538.7101  Definitions.

    The definitions in subsection 538.7001 shall apply for purposes of 
this subpart.


538.7102  General.

    (a) Section 833 of the John Warner National Defense Authorization 
Act for Fiscal Year 2007 (Pub. L. 109-364) amends 40 U.S.C. 502 to 
authorize the Administrator of General Services to provide to State and 
local governments the use of Federal Supply Schedules of the GSA for 
purchase of products and services to be used to facilitate recovery 
from a major disaster declared by the President under the Robert T. 
Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 
et seq.) or to facilitate recovery from terrorism or nuclear, 
biological, chemical, or radiological attack. Section 833 requires the 
Secretary of Homeland Security to determine which products and services 
qualify before the Administrator provides for the use of the Federal 
Supply Schedules. Use of Federal supply schedules by State and local 
governments is voluntary. Agreement of a schedule contractor to offer 
recovery purchasing under the contract and acceptance of any order for 
recovery purchasing from a State or local government is voluntary.
    (b) State and local governments are authorized to use Federal 
Supply Schedules to procure products and services determined by the 
Secretary of Homeland Security to be used to facilitate recovery from 
major disasters, terrorism, or nuclear, biological, chemical, or 
radiological attack. A listing of the Federal Supply Schedules for the 
products and services is available in GSA's Schedules e-Library at Web 
site http://www.gsaelibrary.gsa.gov. Click on the link, ``Disaster 
Recovery Purchasing, State and Local.'' The participating contractors 
and the products and services available for recovery purchasing will be 
labeled with the Disaster Recovery Purchasing ICON.
    (c) State and local governments that wish to use the Federal Supply 
Schedules to facilitate recovery from major disasters or attacks are 
responsible for ensuring that only authorized representatives of their 
governments place orders against these schedules and that procured 
products and services are used only for the purposes authorized by 
Section 833 of Public Law 109-364.


538.7103  Policy.

    Preparing solicitations when schedules are open to eligible non-
federal entities. When opening the Federal Supply Schedules for 
products and services determined by the Secretary of Homeland Security, 
for use by eligible non-federal entities, the contracting officer must 
make minor modifications to certain Federal Acquisition Regulation 
(FAR) and GSAM provisions and clauses in order to make clear 
distinctions between the rights and responsibilities of the U.S. 
Government in its management and regulatory capacity pursuant to which 
it awards schedule contracts and fulfills associated Federal 
requirements versus the rights and responsibilities of eligible 
ordering activities placing orders to fulfill agency needs. 
Accordingly, the contracting officer is authorized to modify the 
following FAR provisions/clauses to delete ``Government'' or similar 
language referring to the U.S. Government and substitute ``ordering 
activity'' or similar language when preparing solicitations and 
contracts to be awarded under the Federal Supply Schedules for products 
and services determined by the Secretary of Homeland Security. When 
such changes are made, the word ``(DEVIATION)'' shall be added at the 
end of the title of the provision or clause. These clauses include but 
are not limited to--
    (a) 52.212-4, Contract Terms and Conditions--Commercial Items.
    (b) 52.216-18, Ordering.
    (c) 52.216-19, Order Limitations.
    (d) 52.229-1, State and Local Taxes.
    (e) 52.229-3, Federal, State, and Local Taxes.
    (f) 52.232-7, Payments Under Time-and-Materials and Labor-Hour 
Contracts.
    (g) 52.232-17, Interest.
    (h) 52.232-19, Availability of Funds for the Next Fiscal Year.
    (i) 52.232-34, Payment by Electronic Funds Transfer--Other than 
Central Contractor Registration.
    (j) 52.232-36, Payment by Third Party.
    (k) 52.237-3, Continuity of Services.
    (l) 52.246-4, Inspection of Services-Fixed Price.
    (m) 52.246-6, Inspection-Time-and-Material and Labor-Hour.
    (n) 52.247-34, F.O.B. Destination.
    (o) 52.247-38, F.O.B. Inland Carrier Point of Exportation.


538.7104  Solicitation provisions and contract clauses.

    (a) The contracting officer shall insert the clause at 552.238-76, 
Definition (Federal Supply Schedules)--Recovery Purchasing, in Federal 
Supply Schedule solicitations and contracts which contain products and 
services determined by the Secretary of Homeland Security to facilitate 
recovery from major disasters, terrorism, or nuclear, biological, 
chemical, or radiological attack.
    (b) The contracting officer shall insert the clause at 552.238-78, 
Scope of Contract (Eligible Ordering Activities), with Alternate I in 
Federal Supply Schedule solicitations and contracts which contain 
products and services determined by the Secretary of Homeland Security 
to facilitate recovery from major disasters, terrorism, or nuclear, 
biological, chemical, or radiological attack.
    (c) The contracting officer shall insert the clause at 552.238-80, 
Use of Federal Supply Schedule Contracts by Certain Entities--Recovery 
Purchasing, in Federal Supply Schedule solicitations and contracts 
which contain products and services determined by the Secretary of 
Homeland Security that facilitate recovery from major disasters, 
terrorism, or nuclear, biological, chemical, or radiological attack.
    (d) See 552.101-70 for authorized Federal Acquisition Regulation 
deviations.

[[Page 4654]]

PART 546--QUALITY ASSURANCE

0
8. Amend section 546.710 by revising paragraph (b) to read as follows:


546.710  Contract clauses.

* * * * *
    (b) Multiple award schedules. Insert the clause at 552.246-73, 
Warranty--Multiple Award Schedule, in solicitations and contracts. Use 
Alternate I in solicitations and contracts for--
    (1) FSS Schedule 70 and the Consolidated Products and Services 
Schedule containing information technology Special Item Numbers; or
    (2) Federal Supply Schedules for recovery purchasing (See 
538.7102).
* * * * *

PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
9. Amend section 552.216-72 by--
    (a) Removing from the introductory text of Alternate II 
``516.506(c)'' and adding ``516.506(b)'' in its place; and
    (b) Adding Alternate IV.
    The added text reads as follows:


552.216-72  Placement of orders.

* * * * *
    Alternate IV (FEB 2007). As prescribed in 516.506(d), substitute 
the following paragraphs (a), (c), and (d) for paragraphs (a), (c), 
and (d) of the basic clause:
    (a) See 552.238-78, Scope of Contract (Eligible Ordering 
Activities)--Alternate I, for who may order under this contract.
    (c) If the Contractor agrees, GSA's Federal Acquisition Service 
(FAS) will place orders for eligible ordering activities, as defined 
in paragraph (a) of the clause at 552.238-78-Alternate I, by EDI 
using computer-to-computer EDI. If computer-to-computer EDI is not 
possible, FAS will use an alternative EDI method allowing the 
Contractor to receive orders by facsimile transmission. Subject to 
the Contractor's agreement, other eligible ordering activities, as 
defined in paragraphs (a) and (d) of the clause at 552.238-78-
Alternate I, may also place orders by EDI.
    (d) When computer-to-computer EDI procedures will be used to 
place orders, the Contractor shall enter into one or more Trading 
Partner Agreements (TPA) with each ordering activity placing orders 
electronically in order to ensure mutual understanding by the 
parties of certain electronic transaction conventions and to 
recognize the rights and responsibilities of the parties as they 
apply to this method of placing orders. The TPA must identify, among 
other things, the third party provider(s) through which electronic 
orders are placed, the transaction sets used, security procedures, 
and guidelines for implementation. Ordering activities may obtain a 
sample format to customize as needed from the office specified in 
paragraph (g) of this clause.


552.216-73  [Amended]

0
10. Amend section 552.216-73 by--
0
(a) Removing from the introductory text ``516.506(c)'' and adding 
``516.506(e)'' in its place; and
0
(b) Removing from the introductory text of Alternates I and II 
``516.506(b)'' and adding ``516.506(e)'' in its place, respectively.

0
11. Add section 552.238-76 to read as follows:


552.238-76  Definition (Federal Supply Schedules)--Recovery Purchasing.

    As prescribed in 538.7104(a), insert the following clause:

Definition (Federal Supply Schedules)--Recovery Purchasing (FEB 2007)

    Ordering activity (also called ``ordering agency'' and 
``ordering office'') means an eligible ordering activity (see 
552.238-78, Alternate I) authorized to place orders under Federal 
Supply Schedule contracts.

(End of clause)


0
12. Amend section 552.238-78 by adding Alternate I to read as follows:


552.238-78  Scope of Contract (Eligible Ordering Activities).

* * * * *
    Alternate I (FEB 2007). As prescribed in 538.7104(b), substitute 
the following paragraphs (a) and (d) for paragraphs (a) and (d) of 
the basic clause:
    (a) This solicitation is issued to establish contracts which may 
be used on a nonmandatory basis by the agencies and activities named 
below, as a source of supply for the supplies or services described 
herein, for domestic delivery.
    (1) Executive agencies (as defined in Federal Acquisition 
Regulation Subpart 2.1) including nonappropriated fund activities as 
prescribed in 41 CFR 101-26.000;
    (2) Government contractors authorized in writing by a Federal 
agency pursuant to Federal Acquisition Regulation Subpart 51.1;
    (3) Mixed ownership Government corporations (as defined in the 
Government Corporation Control Act);
    (4) Federal Agencies, including establishments in the 
legislative or judicial branch of government (except the Senate, the 
House of Representatives and the Architect of the Capitol and any 
activities under the direction of the Architect of the Capitol);
    (5) The District of Columbia;
    (6) Tribal governments when authorized under 25 U.S.C. 450j(k);
    (7) Qualified Nonprofit Agencies as authorized under 40 U.S.C. 
502(b); and
    (8) Organizations, other than those identified in paragraph (d) 
of this clause, authorized by GSA pursuant to statute or regulation 
to use GSA as a source of supply.
    (d) The following activities may place orders against Federal 
Supply Schedules for products and services determined by the 
Secretary of Homeland Security to facilitate recovery from major 
disasters, terrorism, or nuclear, biological, chemical, or 
radiological attack, on an optional basis; PROVIDED, the Contractor 
accepts order(s) from such activities: State and local government 
entities, includes any state, local, regional or tribal government 
or any instrumentality thereof (including any local educational 
agency or institution of higher learning).
    State and local government entities, means the states of the 
United States, counties, municipalities, cities, towns, townships, 
tribal governments, public authorities (including public or Indian 
housing agencies under the United States Housing Act of 1937), 
school districts, colleges and other institutions of higher 
education, council of governments (incorporated or not), regional or 
interstate government entities, or any agency or instrumentality of 
the preceding entities (including any local educational agency or 
institution of higher education), and including legislative and 
judicial departments. The term does not include contractors of, or 
grantees of, State or local governments.
    (1) Local educational agency has the meaning given that term in 
section 8013 of the Elementary and Secondary Education Act of 1965 
(20 U.S.C. 7713).
    (2) Institution of higher education has the meaning given that 
term in section 101(a) of the Higher Education Act of 1965 (20 
U.S.C. 1001(a)).
    (3) Tribal government means--
     (i) The governing body of any Indian tribe, band, nation, or 
other organized group or community located in the continental United 
States (excluding the State of Alaska) that is recognized as 
eligible for the special programs and services provided by the 
United States to Indians because of their status as Indians; and
    (ii) Any Alaska Native regional or village corporation 
established pursuant to the Alaska Native Claims Settlement Act (43 
U.S.C. 1601 et seq.).

0
13. Add new section 552.238-80 to read as follows:


552.238-80  Use of Federal Supply Schedule Contracts by Certain 
Entities--Recovery Purchasing.

    As prescribed in 538.7104(c), insert the following clause:

Use of Federal Supply Schedule Contracts by Certain Entities--Recovery 
Purchasing (FEB 2007)

    (a) If an entity identified in paragraph (d) of the clause at 
552.238-78, Scope of Contract (Eligible Ordering Activities)--
Alternate I, elects to place an order under this contract, the 
entity agrees that the order shall be subject to the following 
conditions:
    (1) When the Contractor accepts an order from such an entity, a 
separate contract is formed which incorporates by reference all the 
terms and conditions of the Schedule contract except the Disputes 
clause, the patent indemnity clause, and the portion of the 
Commercial Item Contract Terms and Conditions that specifies 
``Compliance with laws unique to Government contracts'' (which 
applies only to contracts with entities of the Executive branch of 
the U.S. Government). The parties to this new contract which 
incorporates the terms and

[[Page 4655]]

conditions of the Schedule contract are the individual ordering 
activity and the Contractor. The U.S. Government shall not be liable 
for the performance or nonperformance of the new contract. Disputes 
which cannot be resolved by the parties to the new contract may be 
litigated in any State or Federal court with jurisdiction over the 
parties, applying Federal procurement law, including statutes, 
regulations and case law, and, if pertinent, the Uniform Commercial 
Code. To the extent authorized by law, parties to this new contract 
are encouraged to resolve disputes through Alternative Dispute 
Resolution. Likewise, a Blanket Purchase Agreement (BPA), although 
not a contract, is an agreement that may be entered into by the 
Contractor with such an entity and the Federal Government is not a 
party.
    (2) Where contract clauses refer to action by a Contracting 
Officer or a Contracting Officer of GSA, that shall mean the 
individual responsible for placing the order for the ordering 
activity (e.g., Federal Acquisition Regulation 52.212-4 at paragraph 
(f) and FSS clause I-FSS-249 B).
    (3) As a condition of using this contract, eligible ordering 
activities agree to abide by all terms and conditions of the 
Schedule contract, except for those deleted clauses or portions of 
clauses mentioned in paragraph (a)(1) of this clause. Ordering 
activities may include terms and conditions required by statute, 
ordinance, regulation, order, or as otherwise allowed by State and 
local government entities as a part of a statement of work (SOW) or 
statement of objective (SOO) to the extent that these terms and 
conditions do not conflict with the terms and conditions of the 
Schedule contract. The ordering activity and the Contractor 
expressly acknowledge that, in entering into an agreement for the 
ordering activity to purchase goods or services from the Contractor, 
neither the ordering activity nor the Contractor will look to, 
primarily or in any secondary capacity, or file any claim against 
the United States or any of its agencies with respect to any failure 
of performance by the other party.
    (4) The ordering activity is responsible for all payments due 
the Contractor under the contract formed by acceptance of the 
ordering activity's order, without recourse to the agency of the 
U.S. Government, which awarded the Schedule contract.
    (5) The Contractor is encouraged, but not obligated, to accept 
orders from such entities. The Contractor may, within 5 days of 
receipt of the order, decline to accept any order, for any reason. 
The Contractor shall fulfill orders placed by such entities, which 
are not declined within the 5-day period.
    (6) The supplies or services purchased will be used for 
governmental purposes only and will not be resold for personal use. 
Disposal of property acquired will be in accordance with the 
established procedures of the ordering activity for the disposal of 
personal property.
    (7) The state or local government ordering activity will be 
responsible for purchasing products or services to be used to 
facilitate recovery from a major disaster declared by the President 
under the Robert T. Stafford Disaster Relief and Emergency 
Assistance Act (42 U.S.C. 5121 et seq.) or to facilitate recovery 
from terrorism or nuclear, biological, chemical, or radiological 
attack.
    (b) If the Schedule Contractor accepts an order from an entity 
identified in paragraph (d) of the clause at 552.238-78, Scope of 
Contract (Eligible Ordering Activities)--Alternate I, the Contractor 
agrees to the following conditions--
    (1) The ordering activity is responsible for all payments due 
the Contractor for the contract formed by acceptance of the order, 
without recourse to the agency of the U.S. Government, which awarded 
the Schedule contract.
    (2) The Contractor is encouraged, but not obligated, to accept 
orders from such entities. The Contractor may, within 5 days of 
receipt of the order, decline to accept any order, for any reason. 
The Contractor shall decline the order using the same means as those 
used to place the order. The Contractor shall fulfill orders placed 
by such entities, which are not declined within the 5-day period.
    (c) In accordance with clause 552.238-74, Industrial Funding Fee 
and Sales Reporting, the Contractor must report the quarterly dollar 
value of all sales under this contract. When submitting sales 
reports, the Contractor must report two dollar values for each 
Special Item Number--
    (1) The dollar value for sales to entities identified in 
paragraph (a) of the clause at 552.238-78, Scope of Contract 
(Eligible Ordering Activities)--Alternate I; and
    (2) The dollar value for sales to entities identified in 
paragraph (d) of clause 552.238-78, Alternate I.
    (d) A listing of the Federal Supply Schedule contracts for the 
products and services available for disaster recovery purchasing is 
accessible in GSA's Schedules e-Library at Web site http://www.gsaelibrary.gsa.gov. Click on the link, ``Disaster Recovery 
Purchasing, State and Local.'' The participating Contractors and the 
products and services available for disaster recovery purchasing 
will be labeled with the Disaster Recovery Purchasing icon.
(End of clause)
[FR Doc. E7-1641 Filed 1-31-07; 8:45 am]
BILLING CODE 6820-61-P