[Federal Register Volume 87, Number 243 (Tuesday, December 20, 2022)]
[Proposed Rules]
[Pages 77783-77786]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27106]


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GENERAL SERVICES ADMINISTRATION

48 CFR Parts 515, 538 and 552

[GSAR Case 2019-G503; Docket No. 2022-0019; Sequence No. 1]
RIN 3090-AK09


General Services Administration Acquisition Regulation (GSAR); 
Streamline GSA Commercial Contract Clause Requirements

AGENCY: Office of Acquisition Policy, General Services Administration.

ACTION: Proposed rule.

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SUMMARY: The General Services Administration (GSA) is proposing to 
amend the General Services Administration Acquisition Regulation (GSAR) 
to clarify and streamline the clauses contracting officers should 
reference in GSA acquisitions for commercial products and commercial 
services. The rulemaking proposes to update several clauses and other 
related parts by eliminating out of date references and any 
requirements that are not necessary by law.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat as noted below on or before February 21, 2023 to 
be considered in the formation of the final rule.

ADDRESSES: Submit comments in response to GSAR Case 2019-G503 to: 
Regulations.gov: http://www.regulations.gov. Submit comments via the 
Federal eRulemaking portal by searching for ``GSAR Case 2019-G503''. 
Select the link ``Comment Now'' that corresponds with GSAR Case 2019-
G503. Follow the instructions provided at the ``Comment Now'' screen. 
Please include your name, company name (if any), and ``GSAR Case 2019-
G503'' on your attached document. If your comment cannot be submitted 
using https://www.regulations.gov, call or email the points of contact 
in the FOR FURTHER INFORMATION CONTACT section of this document for 
alternate instructions.
    Instructions: Please submit comments only and cite GSAR Case 2019-
G503, in all correspondence related to this case. Comments received 
generally will be posted without change to https://www.regulations.gov, 
including any personal and/or business confidential information 
provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two-to-three days after submission 
to verify posting.

FOR FURTHER INFORMATION CONTACT: Mr. Nicholas Giles, Procurement 
Analyst, at [email protected], for clarification of content. For 
information pertaining to status or publication schedules, contact the 
Regulatory Secretariat at 202-501-4755 or [email protected]. Please 
cite GSAR Case 2019-G503.

SUPPLEMENTARY INFORMATION:

I. Background

    As the largest consumer of commercial products and services, the 
federal government must ensure its contracting officers include the 
appropriate safeguards when procuring these products and services. As 
part of GSA's regulatory review efforts, GSA identified several 
duplicative and outdated clauses incorporated by reference at GSAR 
552.212-71 Contract Terms and Conditions Applicable to GSA Acquisitions 
of Commercial Products and Commercial Services, GSAR 552.212-72 
Contract Terms and Conditions Required To Implement Statutes or 
Executive Orders Applicable to GSA Acquisition of Commercial Products 
and Commercial Services, and other related GSAR sections. This proposed 
rule streamlines and reorganizes the references in GSAR Clauses 
552.212-71 and 552.212-72, and other related GSAR sections for 
contracting officers to consider inserting in solicitations and 
contracts for procuring commercial products and services. As a result, 
the deletion of some of the references within these clauses will reduce 
the time contracting officers spend on reviewing for applicability for 
commercial procurements.
    GSA is amending the GSAR to reorganize 552.212-71 and 552.212-72 to 
reduce duplication of content and to ensure consistency within GSA's 
guidance as it relates to the acquisition of commercial products and 
commercial services. In addition, GSA is amending the GSAR to 
reorganize 515.408 and 538.273 to correct technical errors and clarify 
clauses.

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

    GSA's review of the GSAR clauses for procuring commercial products 
and services resulted in the reorganization of GSAR clauses and 
applicable parts including the removal, transferring and

[[Page 77784]]

renumbering of referenced clauses within GSAR 552.212-71, 552.212-72 
and other applicable GSAR sections to ensure contracting officers 
include the appropriate provisions and clauses in commercial contracts 
and solicitations. These changes can be categorized into three areas: 
(1) reorganization of commercial clauses and applicable parts; (2) 
relocation of an FSS clause; and (3) editorial changes.

1. Reorganization of Commercial Clauses and Applicable Parts

    The proposed changes to the GSAR will:
    a. Remove references to five (5) obsolete clauses in 552.212-71 
that were deleted in previous GSAR cases. Based on GSA's review of GSAR 
552.212-71, this rule proposes to remove the references to the 
following five (5) obsolete clauses:
    (1) 552.228-70 Workers' Compensation Laws; \1\
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    \1\ See 74 FR 17099, dated May 14, 2009, deleting GSAR clause 
552.228-70.
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    (2) 552.232-71 Adjusting Payment; \2\
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    \2\ See 74 FR 54915, dated November 25, 2009, deleting GSAR 
clause 552.232-71.
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    (3) 552.232-73 Availability of Funds; \3\
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    \3\ Ibid., deleting GSAR clause 552.232-73.
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    (4) 552.232-78 Payment Information; \4\ and
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    \4\ Ibid., deleting GSAR clause 552.232-78.
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    (5) 552.246-76 Warranty of Pesticides.\5\
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    \5\ See 74 FR 26110, dated June 1, 2009, deleting GSAR clause 
552.246-76.
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    b. Remove references to clauses that only apply to procurements 
under the FSS or Multiple Award Schedule (MAS) program from GSAR 
552.212-71 and 552.212-72. Based on GSA's review of GSAR 552.212-71 and 
552.212-72, this proposed rule removes the following three (3) clauses 
that apply exclusively to FSS or MAS contracts and are not appropriate 
for broad commercial procurements:
    (1) 552.215-72 Price Adjustment--Failure to Provide Accurate 
Information; \6\
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    \6\ The prescription for this clause at GSAR 515.408(d) directs 
contracting officers to insert this clause in solicitations and 
contracts under the MAS program when the contract contains the basic 
clause 552.238-80 Industrial Funding Fee and Sales Reporting.
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    (2) 552.238-73 Identification of Electronic Office Equipment 
Providing Accessibility for the Handicapped; and
    (3) 552.238-78 Identification of Products That Have Environmental 
Attributes.
    Removing references to these three (3) clauses will ensure 
consistency with GSA's previous amendments to the GSAR to consolidate 
clauses associated solely with GSA's FSS or MAS contracts into GSAR 
Part 538.\7\
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    \7\ See 75 FR 5241, dated February 2, 2010, and 84 FR 17030, 
dated April 23, 2019.
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    c. Relocate all references to commercial contract clauses required 
by law from GSAR clause 552.212-71, which contains clauses required for 
GSA policy only, and add to GSAR clause 552.212-72, which is focused on 
statutory requirements. The two (2) clauses whose references are 
transferred and their respective statutory authorities are as follows:
    (1) 552.215-70 Examination of Records. This clause is required by 
Examination of Facilities and Records of Contractor, 41 U.S.C. 4706; 
and
    (2) 552.232-23 Assignment of Claims. This clause is required by the 
Assignment of Claims Act, 41 U.S.C. 6305, et. al.

2. Relocation of an FSS Clause

    The proposed changes to the GSAR will relocate the prescription for 
GSAR 552.215-72 at paragraph (d) of 515.408 to the new paragraph 
(d)(36) at 538.273, and for conforming changes, renumber the price 
adjustment clause at GSAR 552.215-72 to 552.238-117. The relocation of 
this clause and its prescription is consistent with GSA's rewrite 
efforts to move all FSS or MAS clauses into GSAR Part 538.

3. Editorial Changes

    The proposed change to the GSAR will:
    a. Delete GSAR 515.408(a)(1) to remove obsolete reference to GSAR 
clause 552.212-70 Preparation of Offer (Multiple Award Schedule) and 
renumber accordingly. On February 2, 2010, GSA deleted GSAR 552.212-70 
\8\ but retained its text in GSA internal policy at I-FSS-972.\9\ The 
proposed rule will eliminate all references to the obsolete GSAR clause 
552.212-70 from GSAR 515.408.
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    \8\ See 75 FR 5241 deleting GSAR clause 552.212-70 Preparation 
of Offer (Multiple Award Schedule) from GSAR Part 512 and 
contemplating moving the clause to GSAR Part 538 as a better fit. 
The final rule for this case did not move the clause, but did delete 
the clause.
    \9\ See Acquisition Letter MV-20-03, dated February 27, 2020, 
authorizing the continued use of Clause I-FSS-972, Preparation of 
Offer (Multiple Award Schedule).
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    b. Revise GSAR 552.212-71 to change the title of the referenced 
clause from GSAR 552.232-72 Final Payment to GSAR 552.232-72 Final 
Payment Under Building Services Contracts;
    c. Correct grammatical errors in paragraphs (d)(2) and (d)(19) of 
538.273; and
    d. Incorporate minor editorial changes to enhance the readability 
of the following provision and clause designations and prescriptions:
    (1) paragraph (d)(22) of GSAR 538.273;
    (2) paragraph (a) of GSAR 552.212-71; and
    (3) the introductory text of GSAR 552.212-72.

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. 
OMB anticipates that this will not be a significant regulatory action 
and, therefore, will not be 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 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 cannot take effect until 60 days after it is published in 
the Federal Register. This rule is not anticipated to be a ``major 
rule'' under 5 U.S.C. 804(2).

VI. Regulatory Flexibility Act

    The General Services Administration does not expect this rule to 
have a significant economic impact on a substantial number of small 
entities within the meaning of the Regulatory Flexibility Act, 5 U.S. 
601, et seq. because the proposed changes to the GSAR do not add any 
requirement but rather will reorganize clauses by removing, 
transferring, re-titling and renumbering referenced clauses and will 
make technical and editorial changes to ensure contracting officers 
incorporate the correct clauses when procuring commercial products and

[[Page 77785]]

commercial services. However, an Initial Regulatory Flexibility 
Analysis (IRFA) has been prepared consistent with 5 U.S.C. 603.
    The Regulatory Secretariat will be submitting a copy of the Initial 
Regulatory Flexibility Analysis (IRFA) to the Chief Counsel for 
Advocacy of the Small Business Administration. A copy of the IRFA may 
be obtained from the Regulatory Secretariat Division. The General 
Services Administration invites comments from small business concerns 
and other interested parties on the expected impact of this rule on 
small entities.
    The General Services Administration will also consider comments 
from small entities concerning the existing regulations in subparts 
affected by this rule in accordance with 5 U.S.C. 610. Interested 
parties must submit such comments separately and should cite 5 U.S.C. 
610 (GSAR Case 2019-G503) in correspondence.
    The analysis is summarized as follows:
    The General Services Administration is proposing to amend the GSAR 
at 552.212-71 and 552.212-72 and related parts to clarify and 
streamline the contract terms and conditions applicable to GSA 
acquisitions of commercial products and commercial services.
    The objective of the rule is to reorganize the appropriate GSAR 
clauses and parts currently used in commercial solicitations and 
contracts to reduce duplication and to ensure consistency within GSA's 
guidance.
    The rule ensures that contracting officers consider the appropriate 
clauses in solicitations and contracts for procurements for commercial 
products and commercial services. The legal basis for the rule is Title 
40 of the United States Code (U.S.C.) Section 121.
    The rule applies to large and small businesses, which are awarded 
contracts for the acquisition of commercial products, including 
commercial components, and commercial services. Information generated 
from the System for Award Management (SAM), for Fiscal Years 2020-2021 
has been used as the basis for estimating the number of contractors 
that may involve the procurement of commercial services and commercial 
products. The analysis focused on contracts for commercial items 
procured pursuant to the procedures in GSAR Part 512 (Acquisition of 
Commercial Items) and clause 552.212-4 that was included in the 
contract.
    Examination of this data revealed in fiscal years 2020 and 2021, an 
average of 23,603 contracts were awarded for commercial products and 
services. Of these 23,603 new awards, an average of 11,297 (48%) 
contract awards were to small business entities.
    This rule does not include any new reporting, recordkeeping, or 
other compliance requirements for small businesses.
    The General Services Administration does not expect this rule to 
have a significant economic impact on a substantial number of small 
business entities within the meaning of the Regulatory Flexibility Act, 
at 5 U.S.C. 601. This rule merely reorganizes requirements currently in 
use in solicitations and contracts involving the acquisition of 
commercial products and commercial services, and does not implement new 
or changed requirements.
    This rule does not duplicate, overlap, or conflict with any other 
Federal rules.
    There are no known alternatives to this rule which would accomplish 
the stated objectives. This rule does not initiate or impose any new 
administrative or performance requirements on small business 
contractors because the policies are already being followed.

VII. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the GSAR do not impose recordkeeping or information collection 
requirements, or the collection of information from offerors, 
contractors, or members of the public that require the approval of the 
Office of Management and Budget (OMB) under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 515, 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 proposes to amend 48 CFR Parts 515, 538 and 552 as 
set forth below:

0
1. The authority citation for 48 CFR parts 515, 538 and 552 continues 
to read as follows:

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

PART 515--CONTRACTING BY NEGOTIATION


515.408   [Amended]

0
2. Amend section 515.408 by--
0
a. Removing paragraph (a)(1);
0
b. Redesignating paragraphs (a)(2), (a)(3) and (a)(4) as paragraphs 
(a)(1), (a)(2) and (a)(3);
0
 c. Removing from the introductory text of paragraph (b), ``Please 
refer to Clause 552.212-70, Preparation of Offer (Multiple Award 
Schedule), for additional information concerning your offer.'';
0
d. Removing from paragraph (b)(3) the phrase, ``(See definition of 
``concession'' and ``discount'' in 552.212-70.)'';
0
e. Removing from paragraph (c) the first sentence in Column 2;
0
 f. Removing paragraph (d); and
0
g. Redesignating paragraph (e) as paragraph (d).

PART 538--FEDERAL SUPPLY SCHEDULE CONTRACTING

0
3. Amend section 538.273 by--
0
a. Revising the introductory text of paragraph (d)(22); and
0
b. Adding paragraph (d)(37).
    The revision and addition read as follows:


538.273  FSS solicitation provisions and contract clauses.

* * * * *
    (d) * * *
    (22) 552.238-98, Clauses for Overseas Coverage. Use only in FSS 
solicitations and contracts when overseas acquisition is contemplated. 
The GSAR clauses and GSAR provisions in paragraphs (d)(22)(i) through 
(xi) of this section shall also be inserted in full text, when 
applicable.
* * * * *
    (37) 552.238-117, Price Adjustment--Failure to Provide Accurate 
Information. Use only in FSS solicitations and contracts under the MAS 
program. This clause is used when the contract contains the basic 
clause 552.238-80 Industrial Funding Fee and Sales Reporting.
* * * * *

PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
4. Revise section 552.212-71 to read as follows:


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

    As prescribed in 512.301(a)(1), insert the following clause:

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

    (a) The Contractor agrees to comply with any clause that is 
incorporated herein by reference to implement agency policy 
applicable to acquisition of commercial products, including 
commercial components, and commercial services. The clause in effect 
based on the applicable regulation cited on the date the 
solicitation is issued applies unless otherwise stated herein. The

[[Page 77786]]

Contracting Officer should check the clauses in paragraph (b) that 
apply or delete the clauses that do not apply from the list. The 
Contracting Officer may add the date of the clause if desired for 
clarity. The GSAR clauses in paragraph (b) of this section are 
incorporated by reference.
    (b) Clauses.

552.203-71 Restriction on Advertising
552.211-73 Marking
552.219-70 Allocation of Orders--Partially Set-Aside Items
552.229-70 Federal, State, and Local Taxes
552.232-72 Final Payment Under Building Services Contracts
552.237-71 Qualifications of Employees
552.242-70 Status Report of Orders and Shipments

0
5. Revise section 552.212-72 to 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.

    As prescribed in 512.301(a)(2), insert the following clause:

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

    The Contractor agrees to comply with any provision or clause 
that is incorporated herein by reference to implement provisions of 
law or Executive Orders applicable to acquisition of commercial 
items or components. The provision or clause in effect based on the 
applicable regulation cited on the date the solicitation is issued 
applies unless otherwise stated herein. The contracting officer 
should either check the provisions and clauses that apply or delete 
the provisions and clauses that do not apply from the lists in 
paragraphs (a) and (b). The contracting officer may add the date of 
the provision or clause if desired for clarity. The GSAR provisions 
in paragraph (a) and GSAR clauses in paragraph (b) are incorporated 
by reference.
    (a) Provisions.
    (b) Clauses.

552.215-70 Examination of Records by GSA
552.223-70 Hazardous Substances
552.223-71 Nonconforming Hazardous Material
552.223-73 Preservation, Packaging, Packing, Marking, and Labeling 
of Hazardous Materials (HAZMAT) for Shipments.
552.232-23 Assignment of Claims
(End of clause)


552.215-72   [Removed and Reserved]

0
6. Remove and reserve section 552.215-72.
0
7. Add section 552.238-117 to read as follows:


552.238-117  Price Adjustment--Failure to Provide Accurate Information.

    As prescribed in 538.273(d)(36), insert the following clause:

Price Adjustment--Failure To Provide Accurate Information (Aug 1997)

    (a) The Government, at its election, may reduce the price of 
this contract or contract modification if the Contracting Officer 
determines after award of this contract or contract modification 
that the price negotiated was increased by a significant amount 
because the Contractor failed to:
    (1) Provide information required by this solicitation/contract 
or otherwise requested by the Government; or
    (2) Submit information that was current, accurate, and complete; 
or
    (3) Disclose changes in the Contractor's commercial 
pricelist(s), discounts or discounting policies which occurred after 
the original submission and prior to the completion of negotiations.
    (b) The Government will consider information submitted to be 
current, accurate and complete if the data is current, accurate and 
complete as of 14 calendar days prior to the date it is submitted.
    (c) If any reduction in the contract price under this clause 
reduces the price for items for which payment was made prior to the 
date of the modification reflecting the price reduction, the 
Contractor shall be liable to and shall pay the United States--
    (1) The amount of the overpayment; and
    (2) Simple interest on the amount of such overpayment to be 
computed from the date(s) of overpayment to the Contractor to the 
date the Government is repaid by the Contractor at the applicable 
underpayment rate effective each quarter prescribed by the Secretary 
of Treasury under 26 U.S.C. 6621(a)(2).
    (d) Failure to agree on the amount of the decrease shall be 
resolved as a dispute.
    (e) In addition to the remedy in paragraph (a) of this clause, 
the Government may terminate this contract for default. The rights 
and remedies of the Government specified herein are not exclusive, 
and are in addition to any other rights and remedies provided by law 
or under this contract.
(End of clause)
[FR Doc. 2022-27106 Filed 12-19-22; 8:45 am]
BILLING CODE 6820-61-P