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Rule

General Services Administration Acquisition Regulation; Rewrite of Part 512, Acquisition of Commercial Items

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Information about this document as published in the Federal Register.

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This document has been published in the Federal Register. Use the PDF linked in the document sidebar for the official electronic format.

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AGENCIES:

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

ACTION:

Final rule.

SUMMARY:

The General Services Administration (GSA) is amending the General Services Administration Acquisition Regulation (GSAR) to update the text addressing the acquisition of commercial items. This rule is a result of the GSAM Rewrite initiative undertaken by GSA to revise the GSAM to maintain consistency with the Federal Acquisition Regulation, and to implement streamlined and innovative acquisition procedures that contractors, offerors, and GSA contracting personnel can utilize when entering into and administering contractual relationships. The GSAM incorporates the GSAR as well as internal agency acquisition policy.

DATES:

Effective Date: March 4, 2010

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FOR FURTHER INFORMATION CONTACT:

For clarification of content, contact Mr. Michael O. Jackson, Procurement Analyst, at (202) 208-4949. For Start Printed Page 5242information pertaining to status or publication schedules, contact the Regulatory Secretariat (MVPR), Room 4041, 1800 F Street, NW., Washington, DC, 20405, (202) 501-4755. Please cite GSAR Amendment 2010-01, GSAR case 2008-G504 (Change 43).

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SUPPLEMENTARY INFORMATION:

A. Background

The GSAR Rewrite Project and Process

GSA published an Advance Notice of Proposed Rulemaking (ANPR) in the Federal Register at 71 FR 7910 on February 15, 2006, with request for comments on all parts of the GSAM. As a result, four comments were received on GSAR part 512. These comments are addressed below. In addition, internal review comments have been incorporated, as appropriate. A proposed rule for the regulatory portion of the GSAM was published in the Federal Register at 73 FR 44953 on August 1, 2008. The public comment period for GSAR part 512 closed on September 30, 2008, and no comments were received.

The Rewrite of GSAR Part 512

This final rule contains the revisions made to GSAR Part 512, Acquisition of Commercial Items. The rule revises GSAR part 512 to address the text at GSAR 512.301, Solicitation provisions and contract clauses for the acquisition of commercial items. Section 512.203 has been revised to add language regarding using GSAM part 512 for construction contracts. GSAR clauses 552.212-70, Preparation of Offer (Multiple Award Schedule), and 552.212-73, Evaluation—Commercial Items (Multiple Award Schedule), are proposed for deletion from GSAR part 512 and proposed to be moved to GSAR Part 538, Federal Supply Schedule Contracting, as these GSAR clauses are a better fit in GSAR part 538. GSAR clauses 552.212-71, Contract Terms and Conditions Applicable to GSA Acquisition of Commercial Items and 552.212-72, Contract Terms and Conditions Required to Implement Statutes or Executive Orders Applicable to GSA Acquisition of Commercial Items, are retained with no changes.

Discussion of Comments

A proposed rule for the regulatory portion of the GSAM was published in the Federal Register on August 1, 2008, at 73 FR 44953. The public comment period for GSAR part 512 closed on September 30, 2008, and no comments were received. Four comments covering GSAR part 512 were received in response to the Advanced Notice of Proposed Rulemaking. A discussion of these comments is provided below:

Comment: Add a clause to the GSAM that allows for use of FAR part 12 in relation to constructions or remodeling of real property.

Response: Section 512.203 has been revised to add language regarding using GSAM part 512 for construction contracts.

Comment: Revise the GSAR to address inconsistencies and duplications between and among GSA contract clauses and FAR part 12 that are often included in a single contract.

Response: The clauses were reviewed and any inconsistencies were eliminated to the maximum extent possible.

Comment: Revise the GSAR to encourage contracting officers to consider a vendor's commercial practices and policies during negotiation of contract terms and conditions consistent with the contracting officer's ability to tailor clauses under FAR 12.302.

Response: Current FAR part 12 requires contracting officers to consider a vendor's commercial practices and policies during negotiations of contract terms and conditions.

Comment: Revise the GSAR to eliminate inconsistencies and redundancies between the FAR and GSAR in the context of a Federal Supply Schedule, specifically citing Federal Supply Schedule 70.

Response: The Federal Supply Schedule clauses have been reviewed and are being published in GSAM part 538. Inconsistencies and redundancies between the FAR and GSAR were eliminated to the maximum extent possible.

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. This rule is not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

The General Services Administration certifies that this final rule will not 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 revisions are not considered substantive. The revisions only update and reorganize existing coverage.

This is not a substantive change. Therefore, a Regulatory Flexibility Analysis was not performed. In accordance with 5 U.S.C. 610, the proposed rule requested comments from small entities concerning this assessment, and no comments were received.

C. 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 otherwise collect information from offerors, contractors, or members of the public that require approval of the Office of Management and Budget under 44 U.S.C. Chapter 35, et seq.

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List of Subjects in 48 CFR Parts 512 and 552

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Dated: January 26, 2010.

David A. Drabkin,

Senior Procurement Executive, Office of Acquisition Policy, General Services Administration.

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Therefore, GSA amends

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1. The authority citation for

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

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PART 512—ACQUISITION OF COMMERCIAL ITEMS

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2. Revise section 512.301 to read as follows:

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Solicitation provisions and contract clauses for the acquisition of commercial items.

(a) Solicitation provisions and clauses. Insert these provisions or clauses in solicitations or solicitations and contracts, respectively, in accordance with the instructions provided:

(1) 552.212-71, Contract Terms and Conditions Applicable to GSA Acquisition of Commercial Items, when listed clauses apply. The clause provides for incorporation by reference of terms and conditions which are, to the maximum extent practicable, consistent with customary commercial practice. If necessary, tailor this clause.

(2) 552.212-72, Contract Terms and Conditions Required to Implement Statutes or Executive Orders Applicable to GSA Acquisitions of Commercial Items, when listed clauses apply. The clause provides for the incorporation by reference of terms and conditions required to implement provisions of law or executive orders that apply to commercial item acquisitions.

(b) Discretionary use of GSAR provisions and clauses. Consistent with the limitations contained in FAR 12.302(c), include in solicitations and contracts by addendum other GSAR provisions and clauses.Start Printed Page 5243

(c) Use of additional provisions and clauses. The Senior Procurement Executive must approve the use of a provision or clause that is either not:

(1) Prescribed in the FAR or GSAR for use in contracts for commercial items.

(2) Consistent with customary commercial practice.

(d) In solicitations issued in conjunction with the policy and procedures in FAR part 14, Sealed Bidding; or FAR part 15, Contracting by Negotiation, include the two notices in paragraphs (d)(1) and (d)(2) of this section, except that acquisitions of leasehold interests in real property, must include only the notice in paragraph (d)(1) of this section.

(1) The information collection requirements contained in this solicitation/contract are either required by regulation or approved by the Office of Management and Budget pursuant to the Paperwork Reduction Act and assigned OMB Control No. 3090-0163.

(2) The General Services Administration's hours of operation are 8 a.m. to 4:30 p.m. Requests for preaward debriefings postmarked or otherwise submitted after 4:30 p.m. will be considered submitted the following business day. Requests for postaward debriefings delivered after 4:30 p.m. will be considered received and filed the following business day.

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PART 552—SOLICITATIONS PROVISIONS AND CONTRACT CLAUSES

[Removed and Reserved]
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3. Remove and reserve section 552.212-70.

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[Removed and Reserved]
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4. Remove and reserve section 552.212-73.

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[FR Doc. 2010-2180 Filed 2-1-10; 8:45 am]

BILLING CODE 6820-61-P