[Federal Register Volume 88, Number 179 (Monday, September 18, 2023)]
[Proposed Rules]
[Pages 63892-63897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-20098]



[[Page 63892]]

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GENERAL SERVICES ADMINISTRATION

48 CFR Parts 538 and 552

[GSAR Case 2020-G511; Docket No. 2023-0019; Sequence No. 1]
RIN 3090-AK21


General Services Administration Acquisition Regulation; Updated 
Guidance for Non-Federal Entities Access to Federal Supply Schedules

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

ACTION: Proposed rule.

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SUMMARY: GSA is proposing to amend the General Services Administration 
Acquisition Regulation (GSAR) to update and clarify the requirements 
for use of Federal Supply Schedule (FSS) contracts by eligible non-
Federal entities, such as State and local governments.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat Division at the address shown below on or before 
November 17, 2023 to be considered in the formation of the final rule.

ADDRESSES: Submit comments in response to GSAR Case 2020-G511 to 
https://www.regulations.gov via the Federal eRulemaking portal by 
searching for ``GSAR Case 2020-G511''. Select the link ``Comment Now'' 
that corresponds with GSAR Case 2020-G511. Follow the instructions 
provided at the ``Comment Now'' screen. Please include your name, 
company name (if any), and ``GSAR Case 2020-G511'' 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 2020-
G511, 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 
Mr. Thomas O'Linn, Procurement Analyst, at [email protected] or 202-
445-0390. For information pertaining to status or publication 
schedules, contact the Regulatory Secretariat Division at 
[email protected] or 202-501-4755. Please cite GSAR Case 2020-G511.

SUPPLEMENTARY INFORMATION:

I. Background

    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 to update 
and clarify GSAR subpart 538.70, Purchasing by Non-Federal Entities.
    GSAR subpart 538.70 prescribes the policies and procedures that 
implement statutory, regulatory, and other provisions that authorize 
eligible non-Federal entities (e.g., State or local governments as 
defined in 40 U.S.C. 502(c)(3)) use of Federal Supply Schedule (FSS) 
contracts.
    The GSA Schedule, also known as 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 and other 
authorized ordering activities.
    This change will update and clarify GSAR subpart 538.70, which 
supports use of FSS contracts by eligible non-Federal entities. This 
subpart is being revised to make administrative changes due to changes 
in some of the underlying authorities supporting use of FSS contracts 
by eligible non-Federal entities. This rule also updates and clarifies 
existing requirements supporting use of FSS contracts by eligible non-
Federal entities, adds additional key authorities that support such 
use, and makes additional technical corrections to enhance clarity of 
existing requirements.

II. Discussion and Analysis

    This rule proposes to revise GSAR subpart 538.70 in its entirety in 
an effort to: (1) update and clarify existing requirements supporting 
use of FSS contracts by eligible non-Federal entities; (2) clarify GSAR 
clause requirements (e.g., remove redundant information); (3) and 
reflect changes based on some of the underlying authorities that 
provide use of FSS contracts by eligible non-Federal entities; (4) add 
additional key authorities that support such use. A summary of these 
revisions is as follows:
    A. Subpart 538.70--Purchasing by Non-Federal Entities, is being 
renamed as Subpart 538.70--Use of GSA's Federal Supply Schedule 
Contracts by Eligible Non-Federal Entities. The purpose for renaming 
this subpart is to provide clarity that this subpart deals only with 
Federal Supply Schedule contracts. The intent is to resolve any 
confusion around non-Federal entity access to other GSA programs and 
contracts.
    B. Section 538.7000 Scope of subpart, is revised in its entirety to 
clarify the scope of this subpart. The change is intended to resolve 
confusion around the scope of this subpart and its relation to other 
GSA programs and contracts.
    C. Section 538.7001 Definitions, is revised in its entirety to: add 
definitions for purposes of clarity, revise existing definitions for 
purposes of clarity or currency, and remove definitions determined to 
be no longer necessary. For example, the existing definitions for 
``preparedness'', ``recovery'', and ``response'' are being revised to 
reflect updates to FEMA's National Response Framework, which addresses 
disasters and other incidents. Definitions for ``non-Federal entity'' 
and ``eligible'', are also being added. The definition for ``non-
Federal entity'' provides needed clarity surrounding the use of this 
term within the FSS program. The definition for ``eligible'' provides a 
needed qualifier for understanding the difference between a non-Federal 
entity that is able to use FSS contracts and one that is not. The 
definitions for ``relief'', ``ordering activity'', and ``state and 
local government entities'' are being removed as they have been 
determined to be no longer necessary.
    D. Section 538.7002 General, is being renamed as 538.7002 
Authorities, and revised in its entirety. The revision: (1) renames the 
section to accurately reflect the content of the section, which is to 
provide a list of the authorities supporting use of FSS contracts by 
eligible non-Federal entities; (2) identifies and clarifies a number of 
existing authorities available to eligible non-Federal entities; (3) 
identifies additional authorities not currently identified in this 
section (e.g., the addition of the Indian Self-Determination and 
Education Assistance Act (ISDEAA) authority); (4) provides for the 
inclusion of additional future authorities that may impact the 
eligibility of non-Federal entities (i.e., currently 538.7002 provides 
only a limited enumerated list of authorities); and (5) provides a 
hyperlink to a GSA website that provides additional information about 
the authorities supporting the use of FSS contracts by eligible non-
Federal entities.
    E. Section 538.7003 Policy, is being renamed as 538.7003 Non-
Federal entity requirements, and revised in its entirety. The revision: 
(1) removes the ability to deviate from various FAR provisions

[[Page 63893]]

and clauses; (2) provides clarity on the use of FSS contracts by 
eligible non-Federal entities; and (3) adds a hyperlink to GSA's 
website that provides GSA FSS ordering guidance to eligible non-Federal 
entities.
    F. Section 538.7004 Solicitation provisions and contract clauses, 
is being renamed as 538.7004 GSA responsibilities, and revised in its 
entirety. The revision describes GSA's responsibilities concerning the 
use of FSS contracts by eligible non-Federal entities. These 
responsibilities reflect existing requirements, thus the intent of 
moving them to the GSAR is to enhance awareness of these requirements.
    G. Section 538.7005 Contract clause, is a new section being added 
to the subpart. This new section provides for the prescription of GSAR 
clause 552.238-114, which is being revised under this proposed rule.
    H. GSAR clause 552.238-105, Deliveries Beyond the Contractual 
Period--Placing of Orders, is being revised. The revision updates the 
citation to GSAR clause 552.238-113, which is being revised and renamed 
under this proposed rule. The revision changes the citation from 
``Clause 552.238-113, Scope of Contract (Eligible Ordering 
Activities)'' to ``the GSAR clause at 552.238-113, Authorities 
Supporting Use of Federal Supply Schedule Contracts.''
    I. GSAR Clause 552.238-112, Definitions (Federal Supply Schedules) 
Non-Federal Entity, is being revised, and renamed as 552.238-112, 
Definitions--Federal Supply Schedule Contracts. The revision provides 
for a definition for the word `eligible' and an updated definition for 
the term `ordering activity.' The definition for ``eligible'' provides 
a needed qualifier for understanding the difference between a non-
Federal entity that is authorized to use FSS contracts and one that is 
not. The update to the definition for the term `ordering activity' is 
needed in order to capture the ability for ordering activities to 
establish blanket purchase agreements under FSS contracts.
    J. GSAR clause 552.238-113, Scope of Contract (Eligible Ordering 
Activities), is being revised, and renamed 552.238-113, Authorities 
Supporting Use of Federal Supply Schedule Contracts. The revision: (1) 
renames the clause so as to clarify this clause applies to FSS 
contracts; (2) removes unnecessary or redundant information that is 
contained elsewhere in the FSS solicitation and resultant contracts; 
(3) streamlines the clause to focus solely on the authorities that 
support use of FSS contracts; and (4) provides an updated list of the 
primary authorities supporting use of FSS contracts.
    K. GSAR clause 552.238-114, Use of Federal Supply Schedule 
Contracts by Non-Federal Entities, is being revised and renamed 
552.238-114, Use of Federal Supply Schedule Contracts by Eligible Non-
Federal Entities. The revision: (1) renames the clause to add the word 
``eligible'' to the clause title; (2) captures the ability for eligible 
non-federal entities to establish blanket purchase agreements under FSS 
contracts (which is currently not addressed in the existing clause); 
and (3) clarifies the requirements that apply to use of FSS contracts 
by eligible non-Federal entities.
    L. Lastly, section 538.273, FSS solicitation provisions and 
contract clauses, is being revised to provide for the prescription of 
GSAR clauses 552.238-112 and 552.238-113, which are being revised and 
renamed under this proposed rule. Section 538.273 is appropriate 
because this is where FSS GSAR provisions and clauses are located.

III. Expected Impact of the Rule

    GSA believes that these changes benefit the FSS program as a whole. 
For example, these changes provide visibility into the resources and 
authorities available to eligible non-Federal entities who may be 
interested in using FSS contracts. Additionally, these changes clarify 
the requirements for FSS contractors interested in doing business with 
eligible non-Federal entities under their FSS contract. These changes 
do not alter the manner in which the FSS contractors conduct business, 
or the manner in which eligible non-Federal entities may access and use 
FSS contracts. The rule merely updates and clarifies requirements 
currently in use in the FSS program, such as updating and clarifying 
existing statutory, regulatory, and other authorities that enable 
eligible non-Federal entities use of FSS contracts. GSA assumes these 
changes will have a positive impact on the FSS program as a whole, 
including FSS contractors and eligible non-Federal entities.
    The qualitative anticipated benefits include, but are not limited 
to, removal of outdated and redundant information; clarification of the 
requirements supporting use of FSS contracts by eligible non-Federal 
entities; clarification of the authorities providing use of FSS 
contracts by eligible non-Federal entities (e.g., adding the authority 
provided by the Indian Self-Determination and Education Assistance Act 
that allows tribal organizations and Indian tribes to use FSS contracts 
under certain conditions); identification of some of the programs 
created for purpose of implementing some of these authorities (e.g., 
GSA's Disaster Purchasing program which implements 40 U.S.C. 502(d)); 
clarification on who is and who is not considered eligible to use FSS 
contracts (i.e., providing a definition for `eligible' and `non-Federal 
entity'); and inclusion of hyperlinks to resources that provide 
additional information about eligibility and use of FSS contracts 
(e.g., https://www.gsa.gov/eligibilitydeterminations includes a list 
that FSS contractors can use to verify an entity's eligibility).
    Due to these benefits, GSA estimates the following annual reduction 
in burden due to the proposed clarifications: GSA estimates it takes 3 
hours for FSS contractors to familiarize (read and understand the 
applicable GSAR requirements of this proposed rule) themselves with the 
regulations. Therefore, for FSS contractors:
    Prior to the revisions: the current estimated total cost is 3 hours 
* $61.29 \1\ (GS-12 Step 5 base pay plus ``Rest of US Locality Pay'' 
plus ``Fringe'') * 13,000 approximate number of current FSS contractors 
= $2,390,310.00.
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    \1\ The hourly rate for GS-12 is $61.29 ($44.98 as a GS-12/step 
5 salary OPM 2023 pay scale Rest of US, with a 36.25% ($16.31) 
fringe factor pursuant to OMB memorandum M-08-13).
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    After the revisions: the estimated total cost is 2.5 hours * $61.29 
(GS-12 Step 5 base pay plus ``Rest of US Locality Pay'' plus 
``Fringe'') * 13,000 approximate number of current FSS contractors = 
$2,191,117.50.
    Resulting in a reduction in burden of $199,192.50.

IV. Executive Orders 12866, 13563 and 14094

    Executive Order (E.O.) 12866 (Regulatory Planning and Review) 
directs 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 (Improving Regulation and Regulatory 
Review) 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. OIRA has determined that

[[Page 63894]]

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 this rule is to: (1) update and clarify existing requirements 
supporting use of FSS contracts by eligible non-Federal entities; (2) 
clarify GSAR clause requirements (e.g., rename clauses, remove 
redundant or duplicative information); (3) reflect changes based on 
some of the underlying authorities that provide eligible non-Federal 
entities use of FSS contracts; (4) add additional authorities that 
support such use; and (5) include hyperlinks to resources that provide 
information about eligibility and use of FSS contracts.
    The purpose of the changed text remains the same, and therefore any 
burden would have been identified previously. Additionally, 
participation by both FSS contractors and eligible non-Federal entities 
remains voluntary. 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 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 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 the 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 2020-G511), in 
correspondence.
    The analysis is summarized as follows:

    The objective of the rule is to revise GSAR subpart 538.70 in 
its entirety in an effort to: (1) update and clarify existing 
requirements supporting use of FSS contracts by eligible non-Federal 
entities; (2) clarify GSAR clause requirements (e.g., rename 
clauses, remove redundant or duplicative information); (3) reflect 
changes based on some of the underlying authorities that provide 
eligible non-Federal entities use of FSS contracts; (4) add 
additional authorities that support such use; and (5) include 
hyperlinks to resources that provide information about eligibility 
and use of FSS contracts.
    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 both large and small businesses, which are 
awarded FSS contracts and decide to do business with eligible non-
Federal entities who decide to use FSS contracts (i.e., 
participation by all parties is voluntary).
    Information obtained from the FSS program was used as the basis 
for estimating the number of FSS contractors that the rule may 
apply. For fiscal year 2022, approximately 12,000 GSA FSS 
contractors reported over $780 million in sales to eligible non-
Federal entities. Of the number of FSS contractors that did business 
with eligible non-Federal entities approximately 10,700 (89%) were 
small business FSS contractors.
    It is anticipated that these changes will increase awareness of 
the authorities that allow eligible non-Federal entities use of FSS 
contracts as well as the resources available. It is anticipated that 
these changes will clarify the requirements for FSS contractors 
choosing to do business with eligible non-Federal entities under 
their FSS contracts. Altogether, GSA assumes these changes will have 
a positive impact on the FSS program as a whole, including FSS 
contractors and eligible non-Federal entities.
    The rule does not implement new or change reporting, 
recordkeeping, or other compliance requirements for FSS contracts. 
The rule merely updates and clarifies existing FSS requirements, 
such as updating and clarifying existing statutory, regulatory, and 
other authorities that enable eligible non-Federal entities use of 
FSS contracts. This rule 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 and procedures prescribed 
in existing FSS clauses are already being followed. The rule merely 
updates and clarifies existing statutory, regulatory, and other 
authorities related to the use of FSS contracts by non-Federal 
entities.

VI. 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 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 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

0
2. Amend section 538.273 by--
0
a. Redesignating paragraph (d)(36) as paragraph (d)(38); and
0
b. Adding new paragraph (d)(36) and paragraph (d)(37) to read as 
follows:


538.273  FSS solicitation provisions and contract clauses.

* * * * *
    (d) * * *
    (36) 552.238-112, Definitions--Federal Supply Schedule Contracts.
    (37) 552.238-113, Authorities Supporting Use of Federal Supply 
Schedule Contracts.
* * * * *
0
3. Revise subpart 538.70 to read as follows:
Subpart 538.70--Use of Federal Supply Schedule Contracts by Eligible 
Non-Federal Entities
538.7000 Scope of subpart.
538.7001 Definitions.
538.7002 Authorities.
538.7002-1 Cooperative purchasing program.
538.7002-2 Disaster purchasing program.
538.7002-3 Public health emergencies program.
538.7002-4 Qualified nonprofit agencies for the blind or other 
severely disabled.
538.7002.5 Qualified relief or disaster assistance organizations.
538.7002-6 Indian Self-Determination and Education Assistance Act 
(ISDEAA).
538.7002-7 Native American Housing Assistance and Self Determination 
Act (NAHASDA).
538.7002-8 Urban Indian organizations.
538.7002-9 Tribally controlled schools.
538.7002-10 1122 Program.
538.7003 Non-Federal entity requirements.
538.7004 GSA responsibilities.
538.7005 Contract clause.

Subpart 538.70--Use of Federal Supply Schedule Contracts by 
Eligible Non-Federal Entities


538.7000  Scope of subpart.

    This subpart prescribes policies and procedures for implementing 
statutory,

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regulatory, and other authorities that authorize use of Federal Supply 
Schedule (FSS) contracts by eligible non-Federal entities.


538.7001  Definitions.

    As used in this subpart--
    Eligible means an entity that meets the requirements prescribed by 
statute, regulation, or other authority for purposes of being able to 
use FSS contracts. Information about GSA's FSS eligibility process is 
available at https://www.gsa.gov/eligibilitydeterminations.
    Non-Federal entity means any state, local, territorial, or tribal 
government, or any instrumentality thereof (including any local 
educational agency or institution of higher education); and any other 
non-Federal organization (e.g., a qualified nonprofit agency as defined 
in 40 U.S.C. 502(b)).
    Preparedness means actions that may include, but are not limited 
to: planning, resourcing, organizing, equipping, training, and 
conducting exercises to improve, build and sustain the capabilities 
necessary to prevent, protect, mitigate, respond, and recover from 
disaster.
    Recovery means actions taken to assist communities affected by an 
incident to recover effectively. This includes, but is not limited to, 
actions to restore, redevelop, and revitalize the health, social, 
economic, natural, and environmental fabric of the community. Recovery 
may begin while response is still occurring.
    Response means actions taken during a disaster, or in its 
aftermath, in order to save lives, protect property and the 
environment, and meet basic human needs. Response also includes the 
execution of emergency plans and actions to enable recovery from a 
disaster.


538.7002  Authorities.

    Various laws, regulations, and other authorities allow eligible 
non-Federal entities to use FSS contracts. This section identifies some 
of the common authorities allowing eligible non-Federal entities to use 
FSS contracts. See https://www.gsa.gov/eligibilitydeterminations for 
additional information about the authorities available.


538.7002-1  Cooperative purchasing program.

    40 U.S.C. 502(c) allows State or local governments, as defined in 
40 U.S.C. 502(c)(3), to purchase the types of supplies and services 
described in 40 U.S.C. 502(c). The supplies and services described in 
40 U.S.C. 502(c) are limited to those available under the Information 
Technology Category, and the Security and Protection Category (or 
successor category(ies)). The GSA program that implements this 
authority is called the Cooperative Purchasing program.


538.7002-2  Disaster purchasing program.

    (a) 40 U.S.C. 502(d) allows State or local governments, as defined 
in 40. U.S.C. 502(c)(3), to purchase supplies or services that are to 
be used to facilitate--
    (1) Disaster preparedness or response;
    (2) Recovery from a major disaster declared by the President under 
the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 
U.S.C. 5121 et seq.); or
    (3) Recovery from terrorism, nuclear, biological, chemical, or 
radiological attack.
    (b) The GSA program that implements this authority is called the 
Disaster Purchasing program.


538.7002-3  Public health emergencies program.

    42 U.S.C. 247d allows State or local governments, as defined in 40 
U.S.C. 502(c)(3), to purchase supplies and services when expending 
Federal grant funds in response to a public health emergency declared 
by the Secretary of Health and Human Services under section 319 of the 
Public Health Services Act. The GSA program that implements this 
authority is called the Public Health Emergencies program.


538.7002-4  Qualified nonprofit agencies for the blind or other 
severely disabled.

    40 U.S.C. 502(b) allows qualified nonprofit agencies for the blind 
or other severely disabled, as defined by 41 U.S.C. 8501, that are 
providing a commodity or service to the Government under 41 U.S.C. 
chapter 85, to purchase supplies or services. Purchases under this 
authority must be used directly in making or providing to the 
Government a commodity or service that has been determined by the 
Committee for Purchase From People Who Are Blind or Severely Disabled 
under 41 U.S.C. 8503 to be suitable for procurement by the Government.


538.7002-5  Qualified relief or disaster assistance organizations.

    40 U.S.C. 502(e) allows the American National Red Cross and other 
qualified organizations, as defined in 40 U.S.C. 502(e)(3), to purchase 
supplies or services. Purchases under this authority by the American 
National Red Cross shall be used in furtherance of the purposes of the 
American National Red Cross set forth in 36 U.S.C. 300102. Purchases 
under this authority by other qualified organizations shall be used in 
furtherance of purposes determined to be appropriate to facilitate 
emergency preparedness and disaster relief and set forth in guidance by 
the Administrator of General Services, in consultation with the 
Administrator of the Federal Emergency Management Agency.


538.7002-6  Indian Self-Determination and Education Assistance Act 
(ISDEAA).

    (a) 25 U.S.C. 5324 allows tribal organizations, as defined in 25 
U.S.C. 5304, that have an active ISDEAA contract, grant, or cooperative 
agreement to purchase supplies or services for the purposes of carrying 
out the ISDEAA contract, grant, or cooperative agreement.
    (b) 25 U.S.C. 5370 allows Indian Tribes, as defined in 25 U.S.C. 
5304, that have an active ISDEAA compact or funding agreement to 
purchase supplies or services for the purposes of carrying the ISDEAA 
compact or funding agreement.
    (c) 25 U.S.C. 5396 allows Indian tribes, as defined in 25 U.S.C. 
5304, that have an active ISDEAA compact or funding agreement to 
purchase supplies or services for the purposes of carrying out the 
ISDEAA compact or funding agreement.


538.7002-7  Native American Housing Assistance and Self Determination 
Act (NAHASDA).

    25 U.S.C. 4111 allows Indian tribes, as defined in 25 U.S.C. 4103, 
and tribally designated housing entities, as defined in 25 U.S.C. 4103, 
that have an active NAHASDA contract, grant, or cooperative agreement 
to purchase supplies and services for the purposes of carrying out the 
NAHASDA contract, grant, or cooperative agreement.


538.7002-8  Urban Indian organizations.

    25 U.S.C. 1660g(e) allows Urban Indian organizations, as defined in 
25 U.S.C. 1603, that have an active contract or grant pursuant to 25 
U.S.C. chapter 18 subchapter IV to purchase supplies and services for 
the purposes of carrying out the contract or grant.


538.7002-9  Tribally controlled schools.

    25 U.S.C. 2507(a)(6) allows tribally controlled schools, as defined 
under 25 U.S.C. 2511, that have an active grant pursuant to 25 U.S.C. 
chapter 27 to purchase supplies or services for the purposes of 
carrying out the grant.


538.7002-10  1122 Program.

    10 U.S.C. 281 allows States and units of local government, as 
defined in 10 U.S.C. 281, to purchase equipment suitable for counter-
drug, homeland security, and emergency response activities through the 
Department of

[[Page 63896]]

Defense. GSA, in coordination with the Secretary of Defense, produces 
and maintains a catalog in accordance with the procedures established 
by the Secretary of Defense. The catalog includes access to equipment 
available under FSS contracts. States and units of local government 
interested in using the 1122 program should contact their designated 
State point of contact.


538.7003  Non-Federal entity requirements.

    Only non-Federal entities that are eligible may use FSS contracts. 
Use of FSS contracts by eligible non-Federal entities is voluntary. The 
following requirements apply to eligible non-Federal entities who 
decide to use FSS contracts:
    (a) FSS contractors are not obligated to accept orders or enter 
into blanket purchase agreements; however, they are encouraged to do 
so.
    (b) Purchases cannot be made for personal use.
    (c) Purchases cannot be for resale, unless specifically authorized.
    (d) At a minimum, purchases shall comply with--
    (1) FSS ordering guidance. Information about GSA's FSS contracts, 
including ordering guidance is available at https://www.gsa.gov/schedules; and
    (2) Any conditions of the underlying authority(ies) supporting the 
use of FSS contracts (e.g., 40 U.S.C. 502(c) limits purchases to 
specific supplies and services available under the FSS program).
    (e) An eligible non-Federal entity's eligibility cannot be 
transferred to a third party (e.g., a subcontractor) or successor 
entity.


538.7004  GSA responsibilities.

    (a) Eligibility determination process. GSA may need to make a 
determination of eligibility to support a non-Federal entity's use of 
FSS contracts. See https://www.gsa.gov/eligibilitydeterminations for 
information about eligibility.
    (b) Oversight. To ensure proper use of and access to FSS contracts 
by eligible non-Federal entities, GSA may take any action within its 
authority as deemed necessary to deny, limit, or restrict use of FSS 
contracts, in whole or in part. Reasons may include, but are not 
limited to--
    (1) A change in an underlying authority;
    (2) A change in the terms and conditions of the FSS program or FSS 
contracts;
    (3) A failure by an eligible non-Federal entity to comply with the 
requirements of 538.7003; or
    (4) Use by an ineligible non-Federal entity.


538.7005  Contract clause.

    Insert the clause at 552.238-114, Use of Federal Supply Schedule 
Contracts by Eligible Non-Federal Entities, in FSS solicitations and 
contracts.

PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
4. Amend section 552.238-105 by revising the date of the clause and the 
first sentence of the paragraph text to read as follows:


552.238-105  Deliveries Beyond the Contractual Period--Placing of 
Orders.

* * * * *

Deliveries Beyond the Contractual Period--Placing of Orders (Date)

    In accordance with the GSAR clause at 552.238-113, Authorities 
Supporting Use of Federal Supply Schedule Contracts, this contract 
covers all requirements that may be ordered, as distinguished from 
delivered during the contract term. * * *

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5. Revise sections 552.238-112 through 552.238-114 to read as follows:


552.238-112  Definitions--Federal Supply Schedule Contracts.

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

Definitions--Federal Supply Schedule Contracts (Date)

    As used in this contract,
    Eligible means an entity that meets the requirements prescribed 
by statute, regulation, or other authority for purposes of being 
able to use Federal Supply Schedule (FSS) contracts. Information 
about FSS eligibility is available at https://www.gsa.gov/eligibilitydeterminations.
    Ordering activity (also called ``ordering agency'' and 
``ordering office'') means an entity that is eligible to place 
orders or establish blanket purchase agreements (BPA) under this 
contract.


(End of clause)


552.238-113  Authorities Supporting Use of Federal Supply Schedule 
Contracts.

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

Authorities Supporting Use of Federal Supply Schedule Contracts (Date)

    (a) Ordering activities are able to use Federal Supply Schedule 
(FSS) contracts based upon a number of statutes, regulations, and 
other authorities. Authorities allowing ordering activities use of 
FSS contracts include, but are not limited to:
    (1) 25 U.S.C. 1660g(e), which provides for the use by urban 
Indian organizations, as defined in 25 U.S.C. 1603, for the purposes 
of carrying out a contract or grant pursuant to 25 U.S.C. chapter 18 
subchapter IV.
    (2) 25 U.S.C. 2507, which provides for the use by tribally 
controlled schools, as defined in 25 U.S.C. 2511, for the purposes 
of carrying out a grant pursuant to 25 U.S.C. chapter 27 (known as 
the Tribally Controlled Schools Act).
    (3) 25 U.S.C. 4111, which provides for the use by Indian tribes, 
as defined in 25 U.S.C. 4103, and tribally designated housing 
entities, as defined in 25 U.S.C. 4103, for the purposes of carrying 
out a contract, grant, or cooperative agreement pursuant to 25 
U.S.C. chapter 43 (known as the Native American Housing Assistance 
and Self Determination Act (NAHASDA)).
    (4) 25 U.S.C. 5324, which provides for the use by tribal 
organizations, as defined in 25 U.S.C. 5304, for the purposes of 
carrying out a contract, grant, or cooperative agreement pursuant to 
25 U.S.C. chapter 46 (known as the Indian Self-Determination and 
Education Assistance Act (ISDEAA)).
    (5) 25 U.S.C. 5370 and 25 U.S.C. 5396, which provides for the 
use by Indian tribes, as defined in 25 U.S.C. 5304, for the purpose 
of carrying out a compact or funding agreement pursuant to 25 U.S.C. 
chapter 46 (known as ISDEAA).
    (6) 40 U.S.C. 113(d), which provides for the use by the Senate, 
the House of Representatives, and the Architect of the Capitol 
(including any building, activity, or function under the direction 
of the Architect of the Capitol).
    (7) 40 U.S.C. 501, which provides for the use by executive 
agencies as defined in 5 U.S.C. 105.
    (8) 40 U.S.C. 502(a), which provides for the use by Federal 
agencies as defined in 40 U.S.C. 102, the District of Columbia, and 
mixed-ownership Government corporations as defined in 31 U.S.C. 
9101.
    (9) 40 U.S.C. 502(b), which provides for the use by qualified 
nonprofit agencies for other severely disabled, as defined in 41 
U.S.C. 8501(6), and qualified nonprofit agencies for the blind, as 
defined in 41 U.S.C. 8501(7), for the purposes of making or 
providing to the Government a commodity or service that has been 
determined by the Committee for Purchase From People Who Are Blind 
or Severely Disabled under 41 U.S.C. 8503 to be suitable for 
procurement by the Government.
    (10) 40 U.S.C. 502(c), which provides for the use by State or 
local governments, as defined in 40 U.S.C. 502(c)(3)(A), for the 
purpose of purchasing the types of supplies and services described 
in 40 U.S.C. 502(c). The GSA program implementing this authority is 
the Cooperative Purchasing program.
    (i) The types of supplies and services described in 40 U.S.C. 
502(c) are limited to those available in the Information Technology 
Category and the Security and Protection Category (or any successor 
categories).
    (11) 40 U.S.C. 502(d), which provides for the use by State or 
local governments, as defined in 40 U.S.C. 502(c)(3)(A), for the 
purposes of facilitating disaster preparedness or response, 
facilitating recovery from a major disaster declared by the 
President under the Robert T. Stafford Disaster Relief and Emergency 
Assistance Act (42 U.S.C. 5121 et seq.), or facilitating recovery 
from terrorism, nuclear, biological, chemical, or radiological 
attack. The GSA program implementing this authority is the Disaster 
Purchasing program.

[[Page 63897]]

    (12) 40 U.S.C. 502(e), which provides for the use by the 
American National Red Cross and other qualified organizations, as 
defined in 40 U.S.C. 502(e)(3). Purchases under this authority by 
the American National Red Cross shall be used in furtherance of the 
purposes of the American National Red Cross set forth in 36 U.S.C. 
300102. Purchases under this authority by other qualified 
organizations shall be used in furtherance of purposes determined to 
be appropriate to facilitate emergency preparedness and disaster 
relief and set forth in guidance by the Administrator of General 
Services, in consultation with the Administrator of the Federal 
Emergency Management Agency.
    (13) 42 U.S.C. 247d, which provides for the use by State or 
local governments, as defined in 40 U.S.C. 502(c)(3)(A), when a 
public health emergency has been declared by the Secretary of Health 
and Human Services under section 319 of the Public Health Services 
Act. The GSA program implementing this authority is the Public 
Health Emergencies program.
    (14) FAR subpart 51.1, which provides for the use by 
contractors, including subcontractors, when such use is authorized 
pursuant to FAR subpart 51.1.


(End of clause)


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

    As prescribed in 538.7005, insert the following clause:

Use of Federal Supply Schedule Contracts by Eligible Non-Federal 
Entities (Date)

    (a) Definition.
    Non-Federal entity, as used in this clause, means any state, 
local, territorial, or tribal government, or any instrumentality 
thereof (including any local educational agency or institution of 
higher education); and any other non-Federal organization (e.g., a 
qualified nonprofit agency as defined in 40 U.S.C. 502(b)).
    (b) Responsibilities. Eligible non-Federal entities are 
responsible for complying with--
    (1) FSS ordering guidance. Information about GSA's FSS 
contracts, including ordering guidance is available at https://www.gsa.gov/schedules; and
    (2) Any conditions of the underlying authority(ies) supporting 
the use of FSS contracts (e.g., 40 U.S.C. 502(c) limits purchases to 
specific supplies and services available under FSS contracts).
    (c) Acceptance. (1) The Contractor is encouraged, but not 
obligated, to accept orders from eligible non-Federal entities under 
this contract. The Contractor may, within 5 business days of receipt 
of an order, reject an order from an eligible non-Federal entity for 
any reason. However, purchase card orders must be rejected within 24 
hours of receipt of the order. Failure to reject an order within 
these timeframes shall constitute acceptance.
    (2) The Contractor is encouraged, but not obligated, to enter 
into blanket purchase agreements (BPAs) with eligible non-Federal 
entities under the terms of this contract. The Contractor should 
respond to any requests to enter into a BPA within 5 business days 
of receipt of the request.
    (d) Conditions of acceptance. If the Contractor accepts an order 
from or enters into a BPA with an eligible non-Federal entity under 
this contract, the following conditions apply:
    (1) For orders, a separate contract is formed between the 
Contractor and the eligible non-Federal entity (herein ``the 
parties''). For BPAs, a separate agreement is formed between the 
parties.
    (2) The resultant order or BPA shall incorporate by reference 
all the terms and conditions of this contract except for:
    (i) FAR clause 52.233-1, Disputes, and
    (ii) Paragraphs (d) Disputes, (h) Patent indemnity, and (r) 
Compliance with laws unique to Government contracts, of GSAR clause 
552.212-4, Contract Terms and Conditions--Commercial Products and 
Commercial Services.
    (3) The U.S. Government is not liable for the performance or 
nonperformance of any order or BPA entered into under this contract 
by the parties. Disputes which cannot be resolved by the parties may 
be litigated in any State or Federal court with jurisdiction over 
the parties, applying Federal procurement law, including statutes, 
regulations, and case law, and, if pertinent, the Uniform Commercial 
Code. To the extent authorized by law, the parties are encouraged to 
resolve disputes through alternative dispute resolution.
    (4) Neither party will look to, primarily or in any secondary 
capacity, or file any claim against the U.S. Government or any of 
its agencies with respect to any failure of performance by the other 
party.
    (e) Additional terms and conditions. Terms and conditions 
required by statute, ordinance, regulation, or as otherwise required 
by an eligible non-Federal entity may be made a part of an order or 
a BPA to the extent that these terms and conditions do not conflict 
with the terms and conditions of this contract. The Contractor 
should review any such additional terms and conditions prior to 
accepting an order or entering into a BPA with an eligible non-
Federal entity.
    (f) Payment. (1) The Contractor is responsible for obtaining all 
payments due to the Contractor from the eligible non-Federal entity 
under the terms and conditions of the order or the BPA entered into 
under this contract, without recourse to the U.S. Government or any 
of its agencies that awarded this contract or administer this 
contract.
    (2) If an eligible non-Federal entity is subject to a State 
prompt payment law, the terms and conditions of the applicable State 
law apply to the orders placed under this contract by such entities. 
If an eligible non-Federal entity is not subject to a State prompt 
payment law, the terms and conditions of paragraph (i) of the GSAR 
clause at 552.212-4, apply to such entities in the same manner as to 
Federal entities.
    (g) Fee and sales reporting. The requirements of the GSAR clause 
at 552.238-80, Industrial Funding Fee and Sales Reporting, apply to 
any sales to eligible non-Federal entities under this contract.


(End of clause)

[FR Doc. 2023-20098 Filed 9-15-23; 8:45 am]
BILLING CODE 6820-61-P