[Federal Register Volume 86, Number 229 (Thursday, December 2, 2021)]
[Rules and Regulations]
[Pages 68441-68444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-25274]


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GENERAL SERVICES ADMINISTRATION

48 CFR Parts 502, 509, 511, 512, 514, 532, 536, 538, and 552

[GSAR Case 2021-G510; Docket No. GSA-GSAR 2021-0026; Sequence No. 1]
RIN 3090-AK37


General Services Administration Acquisition Regulation (GSAR); 
Updating References to Commercial Items

AGENCY: Office of Acquisition Policy, General Services Administration 
(GSA).

ACTION: Final rule.

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SUMMARY: The General Services Administration (GSA) is issuing a final 
rule amending the General Services Administration Acquisition 
Regulation (GSAR) to conform to changes in the Federal Acquisition 
Regulation (FAR) that reflect an updated ``commercial item'' definition 
pursuant to a section of the John S. McCain National Defense 
Authorization Act (NDAA) for Fiscal Year (FY) 2019.

DATES: Effective January 3, 2022.

FOR FURTHER INFORMATION CONTACT: Mr. Stephen Carroll at 817-253-7858 or 
[email protected], for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat at 202-501-4755. Please cite GSAR Case 2021-G510.

SUPPLEMENTARY INFORMATION:

I. Background

    This final rule amends the General Services Administration 
Acquisition Regulation (GSAR) to change instances of ``commercial 
item(s)'' with commercial product(s), commercial services(s), or both 
commercial product(s) and commercial service(s) to match similar 
actions taken in the Federal Acquisition Regulation (FAR).
    FAR Case 2018-018 was published as a final rule at 86 FR 61017 on 
November 4, 2021, to implement section 836 of the John S. McCain 
National Defense Authorization Act for Fiscal Year 2019 to separate the 
definition of ``commercial item'' into the definitions of ``commercial 
product'' and ``commercial service.''
    It is important to note that the amendment to separate ``commercial 
item'' with ``commercial product'' and ``commercial service'' does not 
expand or shrink the universe of products or services that the 
Government may procure using GSAR part 512, nor does it change the 
terms and conditions vendors must comply with.
    This rule does not add any new solicitation provisions or contract 
clauses. This rule merely replaces the term ``commercial item(s)'' with 
``commercial product(s),'' ``commercial service(s),'' ``commercial 
product(s) or commercial service(s),'' or ``commercial product(s) and 
commercial service(s)'' in the GSAR including in part 552, as 
appropriate. It does not add any new burdens because the case does not 
add or change any requirements with which vendors must comply.

II. Authority for This Rulemaking

    Title 40 of the United States Code (U.S.C.) Section 121 authorizes 
GSA to issue regulations, including the GSAR, to control the 
relationship between GSA and contractors.

III. Discussion and Analysis

    As changed by FAR Case 2018-018, and as required by section 836 of 
the NDAA for FY 2019, this final rule replaces instances of commercial 
item(s) with commercial product(s), commercial service(s), or both 
commercial product(s) and commercial service(s).
    This final rule also replaces all instances of ``non-commercial'' 
and ``noncommercial'' with ``other than commercial'' as it relates to 
this rule. This is an editorial change and will provide consistent 
language to the FAR and throughout the GSAR.
    Other minor editorial changes are made in this final rule to 
provide consistent language.

IV. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This rule has been reviewed and determined by OMB not to be a 
significant regulatory action and, therefore, was not subject to review 
under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated 
September 30, 1993.

V. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a ``major rule'' may take

[[Page 68442]]

effect, the agency promulgating the rule must submit a rule report, 
which includes a copy of the rule, to each House of the Congress and to 
the Comptroller General of the United States. A major rule cannot take 
effect until 60 days after it is published in the Federal Register. 
This rule has been reviewed and determined by OMB not to be a ``major 
rule'' under 5 U.S.C. 804(2).

VI. Notice for Public Comment

    The statute that applies to the publication of the GSAR is the 
Office of Federal Procurement Policy statute (codified at title 41 of 
the United States Code). Specifically, 41 U.S.C. 1707(a)(1) requires 
that a procurement policy, regulation, procedure or form (including an 
amendment or modification thereof) must be published for public comment 
if it relates to the expenditure of appropriated funds, and has either 
a significant effect beyond the internal operating procedures of the 
agency issuing the policy, regulation, procedure, or form, or has a 
significant cost or administrative impact on contractors or offerors. 
This rule is not required to be published for public comment, because 
GSA is not issuing a new regulation; rather, this rule is merely an 
editorial change and will provide consistent language to the FAR 
(pursuant to section 836 of the John S. McCain National Defense 
Authorization Act for Fiscal Year 2019) throughout the GSAR. The rule 
does not expand or shrink the universe of products or services that the 
Government may procure using GSAR part 512, nor does it change the 
terms and conditions vendors must comply with.
    This rule does not add any new solicitation provisions or contract 
clauses. This rule merely replaces the term ``commercial item(s)'' with 
``commercial product(s),'' ``commercial service(s),'' ``commercial 
product(s) or commercial service(s),'' or ``commercial product(s) and 
commercial service(s)'' in the GSAR including in part 552, as 
appropriate. It does not add any new burdens because the case does not 
add or change any requirements with which vendors must comply.

VII. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) does not 
apply to this rule, because an opportunity for public comment is not 
required to be given for this rule under 41 U.S.C. 1707(a)(1) (see 
Section VI. of this preamble). Accordingly, no regulatory flexibility 
analysis is required and none has been prepared.

VIII. Paperwork Reduction Act

    The final rule does not contain any information collection 
requirements that require the approval of the Office of Management and 
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 502, 509, 511, 512, 514, 532, 536, 
538, and 552

    Government procurement.

Jeffrey Koses,
Senior Procurement Executive, Office of Acquisition Policy, Office of 
Government-wide Policy, General Services Administration.

    Therefore, GSA amends 48 CFR parts 502, 509, 511, 512, 514, 532, 
536, 538, and 552 as set forth below:

0
1. The authority citation for 48 CFR parts 502, 509, 511, 512, 514, 
532, 536, 538, and 552 continues to read as follows:

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

PART 502--DEFINITIONS OF WORDS AND TERMS


502.101   [Amended]

0
2. Amend section 502.101 in the introductory text by--
0
a. Removing the words ``that meet'' and adding the words ``that meets'' 
in its place;
0
b. Removing the words ``commercial item'' and adding the words 
``commercial products and commercial services'' in its place; and
0
c. Removing the word ``supply'' and adding the words ``product'' in its 
place.

PART 509--CONTRACTOR QUALIFICATIONS


509.405-1   [Amended]

0
3. Amend section 509.405-1 by removing from paragraph (b)(6) 
``commercial items.)'' and adding ``commercial products and commercial 
services).'' in its place.

PART 511--DESCRIBING AGENCY NEEDS


511.602   [Amended]

0
4. Amend section 511.602 by removing from introductory text of 
paragraph (d) ``any items'' and adding ``any product or service'' in 
its place.

PART 512--ACQUISITION OF COMMERCIAL PRODUCTS AND COMMERCIAL 
SERVICES

0
5. Revise the heading for part 512 to read as set forth above.

0
6. Revise the heading of subpart 512.3 to read as follows:

Subpart 512.3--Solicitation Provisions and Contract Clauses for the 
Acquisition of Commercial Products and Commercial Services


512.301   [Amended]

0
7. Amend section 512.301 by--
0
a. Removing from the section heading and paragraph (a) introductory 
text ``commercial items'' and adding ``commercial products and 
commercial services'' in its place;
0
b. Removing from paragraph (a)(1) ``Acquisition of Commercial Items'' 
and ``commercial items'' and adding ``Acquisitions of Commercial 
Products and Commercial Services'' and ``commercial products and 
commercial services'' in their places, respectively;
0
c. Removing from paragraph (a)(2) ``Commercial Items'' and ``commercial 
item'' and adding ``Commercial Products and Commercial Services'' and 
``commercial products and commercial services'' in their places, 
respectively;
0
d. Removing from paragraph (b) ``Commercial Items'' and adding 
``Commercial Products and Commercial Services'' in its place; and
0
e. Removing from paragraph (d)(1) ``commercial items'' and adding 
``commercial products and commercial services'' in its place.

PART 514--SEALED BIDDING


514.201-2   [Amended]

0
8. Amend section 514.201-2 by removing from paragraph (b) ``Commercial 
Items'' and adding ``Commercial Products and Commercial Services'' in 
its place.


514.270-1   [Amended]

0
9. Amend section 514.270-1 by removing ``FAR 3.302'' and adding ``FAR 
2.101'' in its place.


514.270-4   [Amended]

0
10. Amend section 514.270-4 in paragraph (d)(3)(ii) by removing 
``commercial items'' and adding ``commercial products'' in its place 
and removing the word ``etc.''.


514.270-7   [Amended]

0
11. Amend section 514.270-7 by removing from paragraph (d) ``item'' 
everywhere it appears and adding ``product'' in its place.

PART 532--CONTRACT FINANCING

0
12. Revise the heading of subpart 532.1 to read as follows:

[[Page 68443]]

Subpart 532.1--Financing for Other Than a Commercial Purchase


532.908   [Amended]

0
13. Amend section 532.908 by removing from paragraph (b)(2) ``not for 
commercial items'' and adding ``for other than commercial products or 
commercial services'' in its place.

PART 536--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS


536.7104   [Amended]

0
14. Amend section 536.7104 by removing ``services or items'' and adding 
``services or supplies'' in its place.

PART 538--FEDERAL SUPPLY SCHEDULE CONTRACTING


538.271   [Amended]

0
15. Amend section 538.271 by removing from paragraph (a) ``commercial 
items as defined in FAR 2.101'' and adding ``commercial products and 
commercial services'' in its place.


538.273   Amended]

0
16. Amend section 538.273 by--
0
a. Removing from paragraph (b) introductory text ``Commercial Items'' 
and adding ``Commercial Products and Commercial Services'' in its 
place;
0
b. Removing from paragraph (c) introductory text ``Evaluation--
Commercial Items'' and adding ``Evaluation--Commercial Products and 
Commercial Services'' in its place;
0
c. Removing from paragraph (c)(1) ``Commercial Items'' and adding 
``Commercial Products and Commercial Services'' in its place;
0
d. Removing from paragraph (d) introductory text ``Conditions--
Commercial Items'' and adding ``Conditions--Commercial Products and 
Commercial Services'' in its place;
0
e. Removing from paragraph (d)(2) ``contemplate items'' and adding the 
word ``contemplate products'' in its place;
0
f. Removing from paragraphs (d)(19) and (32) ``for items'' and adding 
``for products'' in its place; and
0
g. Removing from paragraph (d)(35) ``when items'' and adding ``when 
products'' in its place.


538.7003   [Amended]

0
17. Removing from paragraph (a) ``Conditions--Commercial Items'' and 
adding ``Conditions--Commercial Products and Commercial Services'' in 
its place.

PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
18. Amend section 552.212-4 by revising the section heading, clause 
heading, and the date of the clause to read as follows:


552.212-4   Contract Terms and Conditions--Commercial Products and 
Commercial Services (FAR DEVIATION).

* * * * *

Contract Terms and Conditions--Commercial Products and Commercial 
Services (FAR DEVIATION) (JAN, 2022).

* * * * *

0
19. Amend section 552.212-71 by--
0
a. Revising the section heading, clause heading, and date of the 
clause; and
0
b. In paragraph (a) introductory text:
0
i. Removing ``items or components'' and adding ``products, including 
commercial components, and commercial services'' in its place; and
0
ii. Removing from the last sentence ``The clauses'' and adding ``The 
GSAR clauses'' in its place.
    The revisions read as follows:


552.212-71   Contract Terms and Conditions Applicable to GSA 
Acquisitions of Commercial Products and Commercial Services.

* * * * *

Contract Terms and Conditions Applicable to GSA Acquisitions of 
Commercial Products and Commercial Services (JAN, 2022).

* * * * *

0
20. Amend section 552.212-72 by--
0
a. Revising the section heading, clause heading, and date of the 
clause; and
0
b. Removing from the introductory text of the clause ``commercial items 
or components'' and adding ``commercial products, including commercial 
components, and commercial services'' in its place.
    The revisions read as follows:


552.212-72   Contract Terms and Conditions Required To Implement 
Statutes or Executive Orders Applicable to GSA Acquisition of 
Commercial Products and Commercial Services.

* * * * *

Contract Terms and Conditions Required To Implement Statutes or 
Executive Orders Applicable to GSA Acquisition of Commercial Products 
and Commercial Services (JAN, 2022)

* * * * *

0
21. Amend section 552.232-25 by:
0
a. Revising the date of the clause; and
0
b. Removing from paragraph (a)(5) introductory text ``Commercial 
Items'' and adding ``Commercial Products and Commercial Services'' in 
its place.
    The revision reads as follows:


552.232-25   Prompt Payment.

* * * * *

Prompt Payment (JAN, 2022)

* * * * *

0
22. Amend section 552.238-75 by--
0
a. Revising the section heading, clause heading, and date of the 
clause; and
0
b. In paragraph (a):
0
i. Revising the first sentence;
0
ii. Removing from the second sentence ``complexity of items'' and 
adding ``complexity of products or services'' in its place; and
0
iii. Removing from the last sentence ``the item(s)'' and adding ``the 
products or services'' in its place.
    The revisions read as follows:


552.238-75   Evaluation--Commercial Products and Commercial Services 
(Federal Supply Schedule).

* * * * *

Evaluation--Commercial Products and Commercial Services (Federal Supply 
Schedule) (JAN, 2022)

    (a) The Government may make multiple awards for the supplies or 
services offered in response to this solicitation that meet the 
commercial product or commercial service definition in FAR clause 
52.202-1. * * *
* * * * *

0
23. Amend section 552.238-78 by:
0
a. Revising the date of the clause; and
0
b. Removing from paragraph (d) introductory text ``an item's'' and 
adding ``an product's'' in its place.
    The revision reads as follows:


552.238-78   Identification of Products That Have Environmental 
Attributes.

* * * * *

Identification of Products That Have Environmental Attributes (JAN, 
2022)

* * * * *

0
24. Amend section 552.238-82 by--
0
a. Revising the date of the clause;
0
b. Removing form paragraph (b)(1)(vii) ``Commercial Items'' and adding 
``Commercial Products and Commercial Services'' in its place; and
0
c. Removing from Alternate II, paragraph (b)(1)(v), ``Commercial 
Items'' and adding ``Commercial Products or Services'' in its place.
    The revision reads as follows:


552.238-82   Modifications (Federal Supply Schedules).

* * * * *

[[Page 68444]]

Modifications (Federal Supply Schedules) (JAN, 2022)

* * * * *

0
25. Amend section 552.238-111 by--
0
a. Revising the date of the clause; and
0
b. Removing form paragraph (c) ``Commercial Items'' and adding 
``Commercial Products and Commercial Services'' in its place.
    The revision reads as follows:


552.238-111   Environmental Protection Agency Registration Requirement.

* * * * *

Environmental Protection Agency Registration Requirement (JAN, 2022)

* * * * *

0
26. Amend section 552.238-114 by--
0
a. Revising the date of the clause; and
0
b. Removing form paragraph (a)(1) ``Commercial Item'' and adding 
``Commercial Products and Commercial Services'' in its place.
    The revision reads as follows:


552.238-114   Use of Federal Supply Schedule Contracts by Non-Federal 
Entities.

* * * * *

Use of Federal Supply Schedule Contracts by Non-Federal Entities (JAN, 
2022)

* * * * *
[FR Doc. 2021-25274 Filed 12-1-21; 8:45 am]
BILLING CODE 6820-61-P