[Federal Register Volume 89, Number 9 (Friday, January 12, 2024)]
[Rules and Regulations]
[Pages 2172-2174]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00519]



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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: Final rule.

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SUMMARY: The General Services Administration is issuing this final rule 
amending the General Services Administration Acquisition Regulation 
(GSAR) to clarify when GSAR clauses apply to Federal Supply Schedule 
contracts.

DATES: Effective: February 12, 2024.

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

    GSA published a proposed rule in the Federal Register at 88 FR 
15941 on March 15, 2023 to amend the GSAR 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/
or 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 (i.e., 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 FSS 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

Analysis of Public Comments

    GSA provided the public a 60-day comment period (March 15, 2023, to 
May 15, 2023). GSA did not receive any comments from the public.

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 ensure GSA's contracting officers are using 
the clauses correctly, clarifies how GSA's delegation to other 
Government agencies work, provides instruction on how to document the 
contract file, and the procedures for requesting a deviation. 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.

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 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 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. OIRA has determined this rule is not to be a 
``major rule'' under 5 U.S.C. 804.

VI. Regulatory Flexibility Act

    GSA 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.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, a 
Final Regulatory Flexibility Analysis (FRFA) has been prepared. The 
FRFA has been prepared consistent with the criteria of 5 U.S.C. 604 and 
is summarized as follows:

    The objective of the final rule is to improve the understanding 
of delegation and coordination expectations of FSS policies for 
delegated agencies. There were no comments submitted and therefore 
no significant issues raised by the public in response to the 
initial regulatory flexibility analysis.
    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 final 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 final 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 final rule does not duplicate, overlap, or conflict with any 
other Federal rules.
    There are no known alternatives to this final rule which would 
accomplish the stated objectives. This rule does not initiate or 
impose any new administrative or performance requirements on small 
business

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contractors because the policies are already being followed. The 
final 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 FRFA to the Chief Counsel for Advocacy of the Small Business 
Administration. A copy of the FRFA may be obtained from the Regulatory 
Secretariat Division.

VII. Paperwork Reduction Act

    The 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 Part 538

    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 part 538 as set forth below:

PART 538--FEDERAL SUPPLY SCHEDULE CONTRACTING

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

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


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 Commissioner 
of the Federal Acquisition Service (FAS) or a designee.

0
3. Add section 538.201 to subpart 538.2 to read as follows:


538.201  Coordination requirements.

    GSA will coordinate with other agencies who administer FSS 
contracts specific to their delegated authority (i.e., the Department 
of Veterans Affairs). Coordination will ensure adherence to policies 
and procedures at the program level, such as providing guidance on 
approved exceptions (see 538.001).

0
4. 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. the 
Handicapped. Use only in FSS solicitations for electronic office 
equipment.
    (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 Clause 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.

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    (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.
    (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 for supplies 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. 2024-00519 Filed 1-11-24; 8:45 am]
BILLING CODE 6820-61-P