[Federal Register Volume 88, Number 50 (Wednesday, March 15, 2023)]
[Proposed Rules]
[Pages 15941-15944]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04733]


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GENERAL SERVICES ADMINISTRATION

48 CFR Part 538

[GSAR Case 2022-G514; Docket No. GSA-GSAR-2023-0009; Sequence No. 1]
RIN 3090-AK58


General Services Administration Acquisition Regulation; 
Standardizing Federal Supply Schedule Clause and Provision 
Prescriptions

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

ACTION: Proposed rule.

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SUMMARY: The General Services Administration is proposing to amend the 
General Services Administration Acquisition Regulation (GSAR) to 
clarify when GSAR clauses apply to Federal Supply Schedule contracts.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat Division at the address shown below on or before 
May 15, 2023 to be considered in the formation of the final rule.

ADDRESSES: Submit comments in response to GSAR Case 2022-G514 to: 
https://www.regulations.gov via the Federal eRulemaking portal by 
searching for ``GSAR Case 2022-G514''. Select the link ``Comment Now'' 
that corresponds with GSAR Case 2022-G514. Follow the instructions 
provided at the ``Comment Now'' screen. Please include your name, 
company name (if any), and ``GSAR Case 2022-G514'' on your attached 
document. If your comment cannot be submitted using https://www.regulations.gov, call or

[[Page 15942]]

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 2022-
G514, 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: For clarification of content, contact 
Ms. Adina Torberntsson, Procurement Analyst, at [email protected] or 
(720) 475-0568. For information pertaining to status or publication 
schedules, contact the Regulatory Secretariat at [email protected] or 
202-501-4755. Please cite GSAR Case 2022-G514.

SUPPLEMENTARY INFORMATION:

I. Background

    The General Services Administration (GSA) conducts routine reviews 
of its acquisition regulations. Routine review of the GSAR, as well as 
feedback from GSA's operational offices, prompted this change. The 
review indicated a need for improved communication to address when the 
GSAR clauses apply to Federal Supply Schedule contracts established by 
a delegated agency.
    The GSA Schedule, also known as Federal Supply Schedule (FSS), and 
Multiple Award Schedule (MAS), is a long-term governmentwide contract 
with commercial companies that provide access to millions of commercial 
products and services at fair and reasonable prices to the Federal 
Government. GSA may delegate certain responsibilities to other agencies 
(e.g., GSA has delegated authority to the Department of Veterans 
Affairs (VA) to procure medical supplies under the VA Federal Supply 
Schedules Program).
    Such delegation provides the authorized agency autonomy over their 
resulting contract. The contract is published on the Federal Supply 
Schedule website, and often looks like every other available FSS 
contract apart from the naming convention. Contracts administered 
solely by GSA have a ``GS'' naming convention.
    This change will streamline the prescription language. Prescription 
language is the language that instructs when a clause is to be applied, 
when establishing a Schedule contract.

II. Discussion and Analysis

    This rule proposes to clarify when the GSAR clauses apply to 
Federal Supply Schedule contracts including those awarded under a GSA 
delegation. The only current delegation is to the Department of Veteran 
Affairs (VA). GSA may delegate authority when requested to by an 
external agency, with the delegation being approved by the 
Administrator of GSA. Currently the only agency who has such delegation 
is the Department of Veterans Affairs. In accordance with 40 U.S.C. 
121(d), the operation and management of health care related Federal 
Supply Schedule Contracts pursuant to 40 U.S.C. 501, are currently 
delegated by GSA to the Department of Veterans Affairs.
    FAR 38.000 identifies that the FSS program is owned and managed by 
GSA. GSA authorizes the VA to award Schedule contracts as described in 
FAR 38.101(d). Although GSA delegates the VA to create and maintain 
schedules to assist with their programs, the VA is required to adhere 
to GSA policy in maintaining these Schedules. This is further described 
within the authorization letter provided to the VA.
    This rule provides streamlined language for the prescription of 
Federal Supply Schedule clauses at GSAR 538.273. This rule also 
clarifies the steps that need to be taken if an outside agency wants to 
deviate from those clauses at GSAR 538.201.

III. Expected Impact of the Rule

    GSA believes that the existing GSAR clauses are currently being 
used correctly. This change will have no impact on the approximately 
13,000 FSS contractors already using the existing clauses. The changes 
do not alter the manner in which the contractors conduct business.
    However, there is an identified need to clarify the delegation 
information, as well as the Federal Supply Schedule prescription 
language. The proposed changes will only impact delegated Government 
agencies (currently only VA) to better clarify how the delegation 
works, how to document the contract file, and how to request a 
deviation if needed.

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. 
OIRA has determined this rule is not a significant regulatory action 
and, therefore, is not subject to review under section 6(b) of E.O. 
12866, Regulatory Planning and Review, dated September 30, 1993.

V. Regulatory Flexibility Act

    GSA does not expect this proposed 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.C. 601, et seq., 
because the described changes clarify the language and only slightly 
modify the current text. The meaning behind the changed text remains 
the same, and therefore any burden would have been identified 
previously. However, an Initial Regulatory Flexibility Analysis (IRFA) 
has been prepared consistent with 5 U.S.C. 603. The analysis is 
summarized as follows:

    The objective of the rule is to improve the understanding of 
delegation and coordination expectations of FSS policies for 
delegated agencies.
    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. In addition, 41 U.S.C. 
152 provides GSA authority over the FSS program.
    The rule applies to large and small businesses, which are 
awarded FSS contracts. Information generated from the System for 
Award Management (SAM), for Fiscal Year 2022 has been used as the 
basis for estimating the number of contractors that may be involved. 
Specifically, FSS contracts for delegated agencies (i.e., Department 
of Veteran Affairs) were analyzed. Examination of this data revealed 
1,700 applicable FSS contracts were awarded. Of these 1,700 new 
awards, 1,417 (83 percent) contract awards were to small business 
entities.
    The rule does not change reporting, recordkeeping, or other 
compliance requirements for FSS contracts. The rule merely clarifies 
requirements currently in use in FSS solicitations and contracts, 
and does not implement new or changed requirements.
    The 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. The rule merely clarifies language in the GSAR to make it 
more accessible to the reader by removing references to outdated 
clauses or excessive language.

    The Regulatory Secretariat Division will be submitting a copy of 
the 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. GSA

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invites comments from small business concerns and other interested 
parties on the expected impact of this rule on small entities.
    GSA 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 2022-G514) in 
correspondence.

VI. Paperwork Reduction Act

    The proposed 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

    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 part 538 as set forth 
below:

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

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

PART 538--FEDERAL SUPPLY SCHEDULE CONTRACTING

0
2. Add sections 538.000 and 538.001 to read as follows:


538.000   Scope of part.

    (a) This part prescribes policies and procedures for contracting 
for supplies and services under the Federal Supply Schedule (FSS) 
program. GSA may delegate certain responsibilities for other agency 
acquisition programs as they relate to the establishment of individual 
federal supply schedules.
    (b) The authority of other agencies to award FSS contracts can only 
be accomplished through delegation from GSA. An agency delegated 
authority by GSA to award contracts under the FSS program is 
responsible for complying with GSA regulations and policies that apply 
to the FSS program, unless an exception is approved by GSA (see 
538.001).


538.001   General.

    If a policy, regulation, or clause is identified as not applicable 
or in conflict to what is delegated by GSA, the delegated agency shall 
submit a determination and finding supporting the rationale as to why 
it does not apply, or is in conflict, in accordance with the delegation 
that was already received from GSA. The determination and finding must 
be approved by the GSA Senior Procurement Executive, the FAS 
Commissioner of the Federal Acquisition Service (FAS) or a designee.
0
3. Revise section 538.273 to read as follows:


538.273   FSS solicitation provisions and contract clauses.

    The following clauses and provisions apply to FSS solicitations and 
contracts, unless otherwise excepted (see 538.001) or as otherwise 
stated below. For example, if only used in solicitations, the 
prescription will clearly state this. If the language does not specify 
``solicitations'' then the clause applies to both FSS solicitations and 
contracts.
    (a) Insert the following provisions in FSS solicitations:
    (1) 552.238-70, Cover Page for Worldwide Federal Supply Schedules. 
Use in all FSS solicitations.
    (2) 552.238-71, Notice of Total Small Business Set-Aside. Use in 
FSS solicitations containing special item numbers (SINs) that are set 
aside for small business.
    (3) 552.238-72, Information Collection Requirements. Use in all FSS 
solicitations.
    (b) Insert the following clauses and provisions in FSS 
solicitations and contracts as an addendum to FAR 52.212-1, 
Instructions to Offerors--Commercial Products and Commercial Services:
    (1) 552.238-73, Identification of Electronic Office Equipment 
Providing Accessibility for Individuals with Disabilities.
    (2) 552.238-74, Introduction of New Supplies/Services (INSS). Only 
for those solicitations allowing the introduction of new supplies/
services. Note: GSA Form 1649, Notification of Federal Supply Schedule 
Improvement, may be required if revising a Special Item Number (SIN).
    (c) Insert the following provisions in FSS solicitations as an 
addendum to FAR 52.212-2, Evaluation--Commercial Products and 
Commercial Services:
    (1) 552.238-75, Evaluation--Commercial Products and Commercial 
Services (Federal Supply Schedule).
    (2) 552.238-76, Use of Non-Government Employees to Review Offers. 
Use only in FSS solicitations when non-government employees may be 
utilized to review solicitation responses.
    (d) Insert the following clauses in FSS solicitations and contracts 
as an addendum to FAR 52.212-4, Contract Terms and Conditions--
Commercial Products and Commercial Services:
    (1) 552.238-77, Submission and Distribution of Authorized Federal 
Supply Schedule Price Lists.
    (2) 552.238-78, Identification of Products that have Environmental 
Attributes. Use only in solicitations and contracts that contemplate 
products with environmental attributes.
    (3) 552.238-79, Cancellation.
    (4) 552.238-80, Industrial Funding Fee and Sales Reporting. Use 
Alternate I for FSS with Transactional Data Reporting requirements.
    (5) 552.238-81, Price Reductions. Use Alternate I for FSS with 
Transactional Data Reporting requirements.
    (6) 552.238-82, Modifications (Federal Supply Schedules).
    (i) Use Alternate I for FSS that only accept eMod.
    (ii) Use Alternate II for FSS with Transactional Data Reporting 
requirements.
    (7) 552.238-83, Examination of Records by GSA (Federal Supply 
Schedules).
    (8) 552.238-84, Discounts for Prompt Payment.
    (9) 552.238-85, Contractor's Billing Responsibilities.
    (10) 552.238-86, Delivery Schedule. Use only for supplies.
    (11) 552.238-87, Delivery Prices.
    (12) 552.238-88, GSA Advantage![supreg]. This clause is not 
required for the Department of Veterans Affairs Federal Supply 
Schedules.
    (13) 552.238-89, Deliveries to the U.S. Postal Service. Use only 
for mailable articles when delivery to a U.S. Postal Service (USPS) 
facility is contemplated.
    (14) 552.238-90, Characteristics of Electric Current. Use only when 
the supply of equipment which uses electrical current is contemplated.
    (15) 552.238-91, Marking and Documentation Requirements for 
Shipping. Use only for supplies when the need for outlining the minimum 
information and documentation required for shipping is contemplated.
    (16) 552.238-92, Vendor Managed Inventory (VMI) Program. Use only 
for supplies when a VMI Program is contemplated.
    (17) 552.238-93, Order Acknowledgement. Use only for supplies.
    (18) 552.238-94, Accelerated Delivery Requirements. Use only for 
supplies.
    (19) 552.238-95, Separate Charge for Performance Oriented Packaging 
(POP). Use only for products defined as hazardous under Federal 
Standard No. 313.
    (20) 552.238-96, Separate Charge for Delivery within Consignee's 
Premises. Use only for supplies when allowing offerors to propose 
separate charges for deliveries within the consignee's premises.
    (21) 552.238-97, Parts and Service.

[[Page 15944]]

    (22) 552.238-98, Clauses for Overseas Coverage. Use only when 
overseas acquisition is contemplated. Choose the most appropriate 
clause(s) to the contract scenario. For example there are multiple free 
on board (F.o.b.) clauses. Select those that apply best to what is 
being procured. The following clauses and provisions shall also be 
inserted in full text, when applicable.
    (i) FAR 52.214-34 Submission of Offers in the English Language.
    (ii) FAR 52.214-35 Submission of Offers in U.S. Currency.
    (iii) 552.238-90 Characteristics of Electric Current.
    (iv) 552.238-91 Marking and Documentation Requirements for 
Shipping.
    (v) 552.238-97 Parts and Service.
    (vi) 552.238-99 Delivery Prices Overseas.
    (vii) 552.238-100 Transshipments.
    (viii) 552.238-101 Foreign Taxes and Duties.
    (ix) FAR 52.247-29 F.o.b Origin.
    (x) FAR 52.247-34 F.o.b. Destination.
    (xi) FAR 52.247-48 F.o.b. Destination-Evidence of Shipment.
    (23) 552.238-99, Delivery Prices Overseas. Use only when overseas 
acquisition is contemplated.
    (24) 552.238-100, Transshipments. Use only when overseas 
acquisition is contemplated.
    (25) 552.238-101, Foreign Taxes and Duties. Use only when overseas 
acquisition is contemplated.
    (26) 552.238-102, English Language and U.S. Dollar Requirements.
    (27) 552.238-103, Electronic Commerce. This clause is not required 
for Department of Veterans Affairs Federal Supply Schedules.
    (28) 552.238-104, Dissemination of Information by Contractor.
    (29) 552.238-105, Deliveries Beyond the Contractual Period-Placing 
of Orders.
    (30) 552.238-106, Interpretation of Contract Requirements.
    (31) 552.238-107, Export Traffic Release (Supplies). Use in FSS 
solicitations and contracts for supplies. This clause is not required 
for vehicles.
    (32) 552.238-108, Spare Parts Kit. Use only for products requiring 
spare part kits. This information is to be specified at the order 
level.
    (33) 552.238-109, Authentication Supplies and Services. Use only 
for information technology associated with the Homeland Security 
Presidential Directive 12 (HSPD-12).
    (34) 552.238-110, Commercial Satellite Communication (COMSATCOM) 
Services. Use only for COMSATCOM services.
    (35) 552.238-111, Environmental Protection Agency Registration 
Requirement. Use only when products may require registration with the 
Environmental Protection Agency.
    (36) 552.238-116, Option to Extend the Term of the FSS Contract. 
Use when appropriate.
    (e) Insert the following fill-in information within the blank of 
paragraph (d) of FAR clause 52.216-22, Indefinite Quantity: ``the 
completion of customer order, including options, 60 months following 
the expiration of the FSS contract ordering period''.

[FR Doc. 2023-04733 Filed 3-14-23; 8:45 am]
BILLING CODE P