[Federal Register Volume 88, Number 175 (Tuesday, September 12, 2023)]
[Rules and Regulations]
[Pages 62472-62474]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19396]


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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: Final rule.

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SUMMARY: The General Services Administration (GSA) is issuing this 
final rule amending the GSAR to clarify and streamline the clauses 
contracting officers should reference in acquisitions for commercial 
products and services.

DATES: Effective: October 12, 2023.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Mr. Nicholas Giles or Ms. Johnnie McDowell, Procurement Analysts at 
202-718-6112 or [email protected]. For information pertaining to 
status or publication schedules, contact the Regulatory Secretariat 
Division at 202-501-4755 or [email protected]. Please cite GSAR Case 
2019-G503.

SUPPLEMENTARY INFORMATION: 

I. Background

    GSA published a proposed rule in the Federal Register at 87 FR 
77783 on December 20, 2022, to amend the GSAR to streamline, 
reorganize, and delete duplicative and outdated clauses. These changes 
can be categorized into three areas: reorganization of commercial 
clauses and applicable parts; relocation of an FSS clause; and 
editorial changes.
    This rule updates several clauses and other related parts by 
eliminating out of date references and any requirements that are not 
necessary by law. Specifically, GSA streamlined and reorganized the 
references in GSAR Clauses 552.212-71 and 552.212-72, and other related 
GSAR sections to reduce duplicative content and to ensure consistency 
within GSA's guidance as it relates to the acquisition of commercial 
products and commercial services.
    In addition, GSA identified several duplicative and outdated 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.

II. Discussion of the Final Rule

A. Analysis of Public Comments

    GSA provided the public a 60-day comment period (December 20, 2022, 
to February 21, 2023). GSA did not receive any comments from the 
public.

B. Summary of Changes

    GSA did not make any significant changes, or changes of any kind, 
since publication of the proposed rule.

III. Expected Impact of the Rule

    This final rule will assist GSA's contracting officers in ensuring 
appropriate safeguards are followed when procuring commercial products 
and services. Contracting officers will be able to clearly identify 
which clauses to consider inserting in solicitations and contracts when 
procuring commercial products and services. In addition, the removal of 
duplicative and outdated clauses will reduce the amount of time 
contracting officers need in preparing solicitation packages and 
monitoring contracts.

IV. Executive Orders 12866, 13563 and 14094

    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. 
E.O. 14094 (Modernizing Regulatory Review) supplements and reaffirms 
the principles, structures, and definitions governing contemporary 
regulatory review established in E.O. 12866 and E.O. 13563. The Office 
of Information and Regulatory Affairs (OIRA) in the Office of 
Management and Budget (OMB) has determined that this

[[Page 62473]]

is not a significant regulatory action and, therefore, was not subject 
to review under Section 6(b) of Executive Order 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 GSA 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. OIRA in OMB has determined that 
this is not a major rule under 5 U.S.C. 804.

VI. Regulatory Flexibility Act

    GSA does not expect this final rule to have a significant economic 
impact on a substantial number of small entities within the meaning of 
the Regulatory Flexibility Act, at 5 U.S.C. 601, et seq., because the 
rule incorporates clauses that are currently in use in GSA commercial 
solicitations and contracts and contractors are familiar with and are 
currently complying with these practices. However, a Final Regulatory 
Flexibility Analysis (FRFA) has been prepared. There were no comments 
submitted in response to the initial regulatory flexibility analysis 
provided in the proposed rule. The FRFA has been prepared consistent 
with the criteria of 5 U.S.C. 604 and is summarized as follows:
    The GSA is issuing a final rule amending 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 final rule is to ensure contracting officers 
consider the appropriate clauses when procuring GSA acquisitions for 
commercial products and services.
    There were no comments submitted and therefore no significant 
issues raised by the public in response to the initial regulatory 
flexibility analysis. However, GSA made three minor changes to GSAR 
clauses 552.212-71, 552.212-72 and 552.238-117. The clauses all 
required the date of the clauses to be changed to reflect the 
modifications made in this GSAR case.
    The final rule applies to large and small business entities, which 
are responding to solicitations or are awarded contracts for commercial 
products or services. This final rule will not have a significant 
economic impact on a substantial number of small entities because the 
changes to the GSAR do not add any new requirements but rather will 
streamline the procurement process by reorganizing clauses, removing 
duplicative or outdated clauses, transferring, re-titling and 
renumbering referenced clauses and make technical and editorial changes 
to ensure contracting officers incorporate the correct clauses when 
procuring commercial products and commercial services.
    GSA does not expect this final 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.
    The final rule does not impose any new reporting or recordkeeping 
requirements on any small entities.
    The final 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.
    Interested parties may obtain a copy of the FRFA from the 
Regulatory Secretariat Division. The Regulatory Secretariat Division 
has submitted a copy of the FRFA to the Chief Counsel for Advocacy of 
the Small Business Administration.

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 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 amends 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), (3) and (4) as paragraphs (a)(1), 
(2) and (3);
0
c. Removing the first sentence in the note in paragraph (b) 
introductory text;
0
d. Removing the parenthetical last sentence in paragraph (b)(3);
0
e. Removing the first sentence in the ``Column 2'' under paragraph (c);
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 revising paragraph (d)(22) introductory 
text and adding paragraph (d)(37) to 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 (Oct 2023)

    (a) The Contractor agrees to comply with any clause that is 
incorporated herein by reference to implement

[[Page 62474]]

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 
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 (Oct 2023)

    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.

__552.223-72 Hazardous Material Information.

    (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.


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)(37), insert the following clause:

Price Adjustment--Failure To Provide Accurate Information (Oct 2023)

    (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. 2023-19396 Filed 9-11-23; 8:45 am]
BILLING CODE 6820-61-P