[Federal Register Volume 87, Number 41 (Wednesday, March 2, 2022)]
[Rules and Regulations]
[Pages 11589-11590]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-04287]


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GENERAL SERVICES ADMINISTRATION

48 CFR Parts 538 and 552

[GSAR Case 2020-G537; Docket No. 2022-0008; Sequence No. 1]
RIN 3090-AK32


General Services Administration Acquisition Regulation (GSAR); 
Order Level Material Clarifications

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 remove unnecessary language regarding approvals 
and travel and to correct citation and acronym references relating to 
order level materials.

DATES: Effective: April 1, 2022.

FOR FURTHER INFORMATION CONTACT: Ms. Megan Huppee or Mr. Bryon Boyer, 
GSA Acquisition Policy Division, for clarification of content at 
[email protected]. For information pertaining to status or publication 
schedules, contact the Regulatory Secretariat at 202-501-4755. Please 
cite GSAR Case 2020-G537.

SUPPLEMENTARY INFORMATION:

I. Background

    Order Level Materials (OLMs) are supplies and/or services acquired 
in direct support of an individual task or delivery order placed 
against a Federal Supply Schedule (FSS) contract or FSS blanket 
purchase agreement (BPA), when the supplies and/or services are not 
known at the time of FSS contract or FSS BPA award. OLMs must be 
acquired following the procedures in GSAR subpart 538.72. OLMs are 
currently approved for 59 subcategories under FSS contracts, see 
https://www.gsa.gov/olm. The GSAR currently requires the Senior 
Procurement Executive's (SPE) authorization for further use of OLMs 
under FSS. GSA is removing this requirement from the GSAR to provide 
revised internal operating guidance in the non-regulatory GSA 
Acquisition Manual (GSAM).
    GSA is removing references from the OLM clause at 552.238-115 to 
the Federal Travel Regulation (FTR) because those references 
unnecessarily conflate travel as being an order level material and 
complicate the procedures for ordering activities and contracting 
officers.
    GSA is also updating the GSAR to accurately reflect terminology, 
acronyms, citations, and references in conformance with the new 
consolidated FSS schedule procedures (more information available at: 
https://www.gsa.gov/schedule).

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

    After an internal review of existing policy, GSA is removing the 
requirement for GSA SPE authorization for use of OLMs on FSS, because 
it is unnecessary and administratively burdensome to the agency. 
Revised operating guidance which will provide for a lower level of 
approval, will now be provided in the non-regulatory GSAM, because 
these are internal procedures only, and as a result references to 
changes to OLM procedures are removed from the GSAR.
    GSAR clause 552.238-115, Special Ordering Procedures for the 
Acquisition of Order-Level Materials prescribes procedures for 
including OLMs when placing an order against an FSS contract or FSS BPA 
and references travel. The reference to travel in the clause, implying 
that it is an OLM, has caused confusion for contracting officers. To 
simplify acquisition procedures, this final rule removes travel from 
the OLM clause to allow ordering activities and contractors to include 
travel at the order level in accordance with Federal Acquisition 
Regulations Part 31 and may also include requirements from the FTR.

IV. Executive Order 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

    OIRA has determined that this rule is not a major rule under 5 
U.S.C. 804(2). Subtitle E of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (codified at 5 U.S.C. 801-808), also known as the 
Congressional Review Act or CRA, generally provides that before a 
``major rule'' may take 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. 
The General Services Administration will submit a report containing 
this rule and other required information to the U.S. Senate, the U.S. 
House of Representatives, and the Comptroller General of the United 
States. A major rule under the CRA cannot take effect until 60 days 
after it is published in the Federal Register.

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 
it does not have a significant effect or impose any new requirements on 
contractors or offers, the rule merely corrects citation

[[Page 11590]]

references, removes confusing references for travel, and removes 
inconsistent language for authorizations for OLMs.

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 538 and 552

    Government procurement.

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

    Therefore, GSA amends 48 CFR parts 538 and 552 as set forth below:

0
1. The authority citation for 48 CFR parts 538 and 552 continues to 
read as follows:

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

PART 538--FEDERAL SUPPLY SCHEDULE CONTRACTING


 538.7201  [Removed and Reserved]

0
2. Remove and reserve section 538.7201.

PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. Amend section 552.238-115 by--
0
a. Revising the date of the clause;
0
b. In paragraph (a), in the definition of ``Order-level materials'' by 
removing the words ``materials means'' and adding ``materials, as used 
in this clause'' and in the third sentence removing the phrase ``this 
section'' and adding the phrase ``this clause'' in its place;
0
c. Revising paragraph (d)(2);
0
d. Removing from paragraph (d)(4) the phrase ``FSS contract'', and 
adding the phrase ``FSS Contract,'' in its place.
0
e. Removing from paragraph (d)(6) the phrase ``follow procedures'' and 
adding the phrase ``follow the procedures'' in its place;
0
f. Removing from paragraph (d)(7)(i) introductory text the word 
``contractor'' and adding the word ``Contractor'' in its place;
0
g. Removing from paragraph (d)(7)(i)(A) the phrase ``contractor under 
FAR 52.212-4 Alt I (i)(1)(ii)(A)'' and adding the phrase ``Contractor 
under paragraph (i)(1)(ii)(A) of FAR clause 52.212-4 Alternate I'' in 
its place;
0
h. Removing from paragraph (d)(7)(i)(B) the word ``contractor'' and 
adding the word ``Contractor'' in its place wherever it appears, and 
removing the word ``its'';
0
i. Revising paragraph (d)(7)(i)(C);
0
j. Removing from paragraph (d)(7)(iii) the phrase ``FAR 52.212-
4(i)(1)(ii)(D)(2) Alternate I'' and adding the phrase ``paragraph 
(i)(1)(ii)(D)(2) of FAR clause 52.212-4 Alternate I'' in its place;
0
k. Removing from paragraph (d)(9) the phrases ``by GSA'' and 
``compliance with the IFF'' and adding the phrases ``by GSA (Federal 
Supply Schedules)'' and ``compliance with the Industrial Funding Fee 
(IFF)'' in their places respectively;
0
l. Removing from paragraph (d)(10) introductory text the phrase 
``OLMs'' and adding the phrase ``Order-level materials'' in its place;
0
m. Removing from paragraph (d)(10)(ii) the phrase ``FSS Schedule 
Pricelists'' and adding ``Federal Supply Schedule (FSS) Price Lists'' 
in its place; and
0
n. Removing paragraph (d)(11).
    The revisions read as follows:


552.238-115  Special Ordering Procedures for the Acquisition of Order-
Level Materials

* * * * *

Special Ordering Procedures for the Acquisition of Order-Level 
Materials (Apr 2022)

* * * * *
    (d) * * *
    (2) Order-level materials are included in the definition of the 
term ``material'' in FAR clause 52.212-4 Alternate I, and, 
therefore, all provisions of FAR clause 52.212-4 Alternate I that 
apply to ``materials'' also apply to order-level materials.
* * * * *
    (7) * * *
    (i) * * *
    (C) A Contractor with an approved purchasing system, per FAR 
subpart 44.3, shall instead follow its purchasing system requirement 
and is exempt from the requirements in paragraphs (d)(7)(i)(A) and 
(B) of this clause.
* * * * *
[FR Doc. 2022-04287 Filed 3-1-22; 8:45 am]
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