AGENCY:
Office of Acquisition Policy, General Services Administration (GSA).
ACTION:
Final rule.
SUMMARY:
GSA is issuing a final rule to amend the General Services Administration Acquisition Regulation (GSAR) to correct clause and provision designation and prescription errors, correct deviations and alternate identification issues, and to make other updates to the GSAR related to identification and incorporation of GSAR provisions and clauses.
DATES:
Effective November 5, 2021.
FOR FURTHER INFORMATION CONTACT:
Mr. Thomas O'Linn, Procurement Analyst, at 202-445-0390 or gsarpolicy@gsa.gov, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755 or GSARegSec@gsa.gov. Please cite GSAR Case 2017-G506.
SUPPLEMENTARY INFORMATION:
I. Background
As part of GSA's regulatory reform efforts, GSA has been performing a comprehensive review of the regulatory requirements in the GSAR. GSA identified designation and prescription errors related to clauses and provisions. Additionally, GSA identified GSAR clause and provision identification and incorporation issues as well as inconsistencies among deviation citations within GSAR part 552. The amendments in this case will result in conformance with Federal Acquisition Regulation (FAR) and GSAR drafting guidelines.
II. Authority for This Rulemaking
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.
III. Discussion and Analysis
The amendments to the GSAR are minor and reflect only technical edits and editorial corrections. More specifically, this case makes several editorial amendments to GSAR clause and provision designations and prescriptions; updates the GSAR policy for using subpart 552.1, updates the GSAR policy for the identification of deviations and alternates, and updates the GSAR policy for incorporating GSAR provisions and clauses by reference; and makes additional editorial corrections related to GSAR clauses and provision prescription.
First, this case makes corrections to bring clause and provision designations and prescriptions up-to-date and in conformance with FAR and GSAR current drafting guidelines. Additionally, makes a number of editorial changes to address errors related to the designation and prescription of several clauses and provisions. For example, subpart 552.2 incorrectly identifies the following GSAR clause as “552.217-73 Notice Regarding Information Collection Requirements” though the correct identification is “552.215-73 Notice”.
Second, this case amends several GSAR provision titles and clause titles to bring them in conformance with FAR and GSAR drafting guidelines concerning the use of deviations. GSAR 552.103 is also being amended to update the policy on identification of deviations to provisions and clauses that meet the definition of deviation in FAR 1.401. Under FAR 1.401(a), a deviation is the “issuance or use of a policy, procedure, solicitation provision . . ., contract clause . . ., method, or practice of conducting acquisition actions of any kind at any stage of the acquisition process that is inconsistent with the FAR”. A GSAR provision or clause that is used in lieu of a FAR provision or clause is a deviation, and therefore, should be indicated as such. For example, GSAR clause 552.227-70 Government Rights (Unlimited) is a deviation to FAR clause 52.227-17 Rights in Data-Special Works; however, the GSAR currently does not identify the clause as being a deviation. As a result, the clause title is being amended to reflect the clause being a deviation.
Third, this case amends the GSAR policy found in 552.101-70 and 552.102 for purposes of reflecting current requirements around the use and incorporation of GSAR provisions and clauses. Lastly, this case makes additional technical amendments throughout the GSAR to conform with the amendments covered by this case. For example, GSAR subpart 519.7 and part 549 are being made non-regulatory due to existing GSAM requirements are non-regulatory.
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. This rule has been reviewed and determined by the Office of Management and Budget (OMB) not to be a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 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. A major rule cannot take effect until 60 days after it is published in the Federal Register . This rule has been reviewed and determined by OMB not to be a “major rule” under 5 U.S.C. 804(2).
VI. Notice for Public Comment
The statute that applies to the publication of the GSAR is the Office of Federal Procurement Policy statute (codified at title 41 of the United States Code). Specifically, 41 U.S.C. 1707(a)(1) requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This rule is not required to be published for public comment, because GSA is not issuing a new regulation that has a significant effect or imposes any requirements on contractors or offerors; rather, because this is a noncontroversial action that only impacts the agency's internal acquisition policies and procedures related to correcting GSAR errors and updating GSAR drafting policies and procedures.
VII. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) does not apply to this rule, because an opportunity for public comment is not required to be given for this rule under 41 U.S.C. 1707(a)(1) (see Section VI. of this preamble). Accordingly, no regulatory flexibility analysis is required and none has been prepared.
VIII. Paperwork Reduction Act
This 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 503, 511, 512, 513, 514, 515, 517, 519, 522, 523, 527, 528, 529, 532, 536, 537, 538, 539, 541, 542, 543, 546, 549, 552 and 570
- 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 503, 511, 512, 513, 514, 515, 517, 519, 522, 523, 527, 528, 529, 532, 536, 537, 538, 539, 541, 542, 543, 546, 549, 552, and 570 as set forth below:
1. The authority citation for 48 CFR parts 503, 511, 512, 513, 514, 515, 517, 519, 522, 523, 527, 528, 529, 532, 536, 537, 538, 539, 541, 542, 543, and 546 continues to read as follows:
Authority : 40 U.S.C. 121(c).
PART 503—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST
2. Revise section 503.1004 to read as follows:
(a) In accordance with FAR 3.1004(b)(1)(i), GSA has established a lower threshold for the inclusion of FAR clause at 52.203-14. Insert the clause in solicitations and contracts funded with disaster assistance funds expected to be at or above $1,000,000.
(b) The information required by FAR 3.1004(b)(2) is as follows:
(1) Poster. GSA Office of Inspector General “FRAUDNET HOTLINE”.
(2) Contact information. The Contractor can obtain the poster from the Contracting Officer.
PART 511—DESCRIBING AGENCY NEEDS
3. Revise section 511.204 to read as follows:
(a) Specifications and drawings. Insert the clause at 552.211-72, Reference to Specifications in Drawings, in solicitations and contracts that contain military or other drawings.
(b) Clauses for supply contracts that exceed the simplified acquisition threshold. When the contract amount is expected to exceed the simplified acquisition threshold, insert—
(1) The clause at 552.211-73, Marking, in solicitations and contracts for supplies when deliveries may be made to both civilian and military activities.
(2) The clause at 552.211-75, Preservation, Packaging, and Packing, in solicitations and contracts for supplies. The contracting officer may also include the clause in contracts estimated to be at or below the simplified acquisition threshold when appropriate. Use the clause with its Alternate I in solicitations and contracts for all Federal Supply Schedule contracts.
(3) A clause substantially the same as the clause at 552.211-76, Charges for Packaging, Packing, and Marking, in solicitations and contracts for supplies to be delivered to GSA distribution centers.
(4) The clause at 552.211-85, Consistent Pack and Package Requirements, in solicitations and contracts for supplies when deliveries may be made to both civilian and military activities.
(5) The clause at 552.211-86, Maximum Weight Per Shipping Container, in solicitations and contracts for supplies when deliveries may be made to both civilian and military activities.
(6) The clause at 552.211-87, Export Packing, in solicitations and contracts for supplies when deliveries may be made to both civilian and military activities.
(7) The clause at 552.211-88, Vehicle Export Preparation, in solicitations and contracts for supplies when deliveries may be made to both civilian and military activities.
(8) The clause at 552.211-89, Non-Manufactured Wood Packaging Material for Export, in solicitations and contracts for supplies when deliveries may be made to both civilian and military activities overseas.
(9) The clause at 552.211-90, Small Parts, in solicitations and contracts for supplies when deliveries may be made to both civilian and military activities.
(10) The clause at 552.211-91, Vehicle Decals, Stickers, and Data Plates, in solicitations and contracts for supplies when deliveries may be made to both civilian and military activities.
(11) The clause at 552.211-92, Radio Frequency Identification (RFID) using Passive Tags, in solicitations and contracts for supplies when deliveries may be made to military activities.
(c) Supply contracts. Insert the clause at 552.211-77, Packing List, in solicitations and contracts for supplies, including purchases over the micro-purchase threshold. Use the clause with its Alternate I in solicitations and contracts for all Federal Supply Schedule contracts.
4. Revise section 511.404 to read as follows:
(a) Supplies or services. (1) Shelf-life items. Insert the following clauses in solicitations and contracts that require delivery of shelf-life items within a specified timeframe from the date of manufacture or production:
(i) The clause at 552.211-79, Acceptable Age of Supplies, if the required shelf-life period is 12 months or less, and lengthy acceptance testing may be involved. For items having a limited shelf-life and when required by the program director, use the clause with its Alternate I.
(ii) The clause at 552.211-80, Age on Delivery, if the required shelf-life period is more than 12 months, or when source inspection can be performed within a short time period.
(2) Stock replenishment contracts. Insert the clause at 552.211-81, Time of Shipment, in solicitations and contracts when a stock replenishment contract is contemplated that does not include the clause at 552.211-83 and requires shipment within 45 calendar days after receipt of the order. Use the clause with its Alternate I if shipment is required after 45 days of receipt of the order.
(3) Indeterminate testing time. Insert the clause at 552.211-83, Availability for Inspection, Testing, and Shipment/Delivery, in solicitations and contracts that provide for source inspection by Government personnel and that require lengthy testing for which time frames cannot be determined in advance. Use the clause with its Alternate I if the contract is for stock items.
(4) Stock program time of delivery. Insert the clause at 552.211-94, Time of Delivery, in solicitations and contracts for supplies for the Stock Program when neither the FAR clause at 52.211-8, or the FAR clause at 52.211-9 is suitable.
(b) Construction. Insert the following clauses in solicitations and contracts when a fixed-price construction contract is contemplated:
(1) The clause at 552.211-10, Commencement, Prosecution, and Completion of Work.
(2) The clause at 552.211-70, Substantial Completion.
5. Add section 511.503 to subpart 511.5 to read as follows:
(a) Insert the clause at 552.211-12, Liquidated Damages-Construction, in solicitations and contracts for construction, other than cost-plus-fixed-fee, when the contracting officer determines that liquidated damages are appropriate (see FAR 11.501(a)).
(b) Insert the clause at 552.211-13, Time Extensions, in solicitations and contracts for construction that includes the clause at 552.211-12.
6. Remove section 511.504.
PART 512—ACQUISITION OF COMMERCIAL ITEMS
7. Revise section 512.301 to read as follows:
(a) Contract clauses. Insert the following clauses in solicitations and contracts for the acquisition of commercial items:
(1) The clause at 552.212-71, Contract Terms and Conditions Applicable to GSA Acquisition of Commercial Items. This clause incorporates by reference only those clauses required to implement GSA requirements applicable to the acquisition of commercial items. This clause may be tailored in accordance with FAR 12.302 and GSAM 512.302.
(2) The clause at 552.212-72, Contract Terms and Conditions Required to Implement Statutes or Executive Orders Applicable to GSA Acquisitions of Commercial Items, when any listed clauses therein apply. This clause incorporates by reference only those clauses required to implement provisions of law or Executive orders that apply to commercial item acquisitions.
(b) FAR deviation. GSA has a FAR deviation that allows use of the clause at 552.212-4 in lieu of the FAR clause at 52.212-4. Insert the clause at 552.212-4, Contract Terms and Conditions-Commercial Items, in lieu of the FAR clause at 52.212-4. Use the clause with its Alternate I in lieu of the FAR clause at 52.212-4 and its Alternate I. This clause may be tailored in accordance with FAR 12.302 and GSAM 512.302.
(c) Discretionary use of GSAR provisions and clauses. Consistent with the limitations contained in FAR 12.302 and 512.302, the contracting officer may include in solicitations and contracts by addendum other GSAR provisions and clauses.
(d) Use of additional provisions and clauses. The Senior Procurement Executive shall approve the use of a provision or clause that is either not:
(1) Prescribed in the FAR or GSAR for use in acquisitions for commercial items.
(2) Consistent with customary commercial practice.
PART 513—SIMPLIFIED ACQUISITION PROCEDURES
8. Revise section 513.202 to read as follows:
Many supplies or services are acquired subject to commercial supplier agreements, as defined in 502.101. The clause at 552.232-39, Unenforceability of Unauthorized Obligations, automatically applies to any micro-purchase, including those made with the Governmentwide purchase card in lieu of the FAR clause at 52.232-39.
9. Revise section 513.302-5 to read as follows:
Where the supplies or services are offered under a commercial supplier agreement, as defined in 502.101, see 532.706-3 for applicable clauses.
PART 514—SEALED BIDDING
10. Revise section 514.201-6 to read as follows:
Insert the provision at 552.214-70, “All or None” Bids, in invitations for bids when reserving the right to evaluate and make an award on an all or none basis.
11. Amend section 514.202-4 by revising paragraph (a)(3) to read as follows:
(a) * * *
(3) Insert the provision at 552.214-72, Bid Sample Requirements, in invitations for bids if bid samples are required. This provision may be modified to fit the circumstances of a procurement.
PART 515—CONTRACTING BY NEGOTIATION
12. Revise section 515.209-70 to read as follows:
(a) Insert the clause at 552.215-70, Examination of Records by GSA, in solicitations and contracts exceeding the simplified acquisition threshold that meet any of the following conditions:
(1) Involve the use or disposition of Government-furnished property.
(2) Provide for advance payments, progress payments based on cost, or guaranteed loan.
(3) Contain a price warranty or price reduction clause.
(4) Involve income to the Government where income is based on operations under the control of the contractor.
(5) Include an economic price adjustment clause where the adjustment is not based solely on an established, third party index.
(6) Are requirements, indefinite-quantity, or letter type contracts as defined in FAR part 16.
(7) Are subject to adjustment based on a negotiated cost escalation base.
(8) Contain the FAR provision at 52.223-4.
(b) The clause in paragraph (a) of this subsection may be modified to define the specific area of audit ( e.g., the use or disposition of Government-furnished property). Legal ( i.e., the Office of General Counsel or the Office of Regional Counsel, as appropriate), and Inspector General ( i.e., the Assistant Inspector General for Auditing or the Regional Inspector General for Auditing, as appropriate) must concur with any modification to the clause.
(c) Insert the clause at 552.215-73, Notice, in all solicitations and contracts for negotiated procurements exceeding the simplified acquisition threshold in accordance with FAR part 15.
PART 517—SPECIAL CONTRACTING METHODS
13. Revise section 517.109 to read as follows:
Use of the FAR clause at 52.217-2 is optional in multi-year contracts authorized by—
(a) 40 U.S.C. 581(c)(6) for the inspection, maintenance, and repair of fixed equipment in a federally-owned building; and
(b) 40 U.S.C. 501(b)(1)(B) for public utility services.
14. Remove section 517.203.
15. Revise section 517.208 to read as follows:
(a) Insert a provision substantially the same as the provision at 552.217-70, Evaluation of Options, in solicitations for the Special Order Program when the following conditions apply:
(1) The solicitation contains an option clause to extend the term of the contract; and
(2) The contract will be fixed price and contain an economic price adjustment clause.
(b) Insert a provision substantially the same as the provision at 552.217-71, Notice Regarding Option(s), in solicitations that include an option clause for increased quantities of supplies or services, or an option clause to extend the term of the contract.
PART 519—SMALL BUSINESS PROGRAMS
16. Add section 519.507 to subpart 519.5 to read as follows:
Insert the clause at 552.219-70, Allocation of Orders—Partially Set-Aside Items, in solicitations and contracts when a requirements contract for supplies is contemplated that will involve partially setting aside orders for small business.
17. Remove section 519.508.
Subpart 519.7 [Removed]
18. Remove subpart 519.7.
19. Add section 519.870-2 to subpart 519.8 to read as follows:
(a) Insert the following clauses in solicitations, contracts, and orders issued under GSA's Partnership Agreement:
(1) 552.219-74, Section 8(a) Direct Award;
(2) 52.219-14, Limitations on Subcontracting; and
(3) 52.219-18, Notification of Competition Limited to Eligible 8(a) Participants, with—
(i) Paragraph (c) of the clause substituted with the following text “(c) Any award resulting from this solicitation will be made directly by the Contracting Officer to the successful 8(a) offeror selected through the evaluation criteria set forth in this solicitation” and
(ii) The text “(DEVIATION)” added after the date of the clause.
(b) Do not insert the following FAR clauses—
(1) 52.219-11, Special 8(a) Contract Conditions;
(2) 52.219-12, Special 8(a) Subcontract Conditions; and
(3) 52.219-17, Section 8(a) Award.
20. Remove section 519.870-8.
PART 522—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
21. Revise section 522.103-5 to read as follows:
Insert the FAR clause at 52.222-1 in solicitations and contracts for DX rated orders under the Defense Priorities and Allocations System (see FAR subpart 11.6).
PART 523—ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
523.30322. In section 523.303 amend paragraphs (a), (b), and (c) by removing the word “Insert” and adding in its place the phrase, “Insert the clause at”.
23. Revise section 523.370 to read as follows:
Insert the provision at 552.223-72, Hazardous Material Information, in solicitations that provide for the delivery of hazardous materials on an f.o.b. origin basis.
PART 527—PATENTS, DATA, AND COPYRIGHTS
24. Revise section 527.409 to read as follows:
GSA has a FAR deviation that allows use of the clauses in paragraphs (a) and (b) of this section in lieu of the FAR clause at 52.227-17.
(a) Except as provided in paragraph (b) of this section, insert the clause at 552.227-70, Government Rights (Unlimited), in lieu of the FAR clause at 52.227-17, in solicitations and contracts for—
(1) Architect-engineer services.
(2) Construction contracts involving architect-engineer services.
(b) If the Government requires sole property rights and exclusive control over the design and data, insert the clause at 552.227-71, Drawings and Other Data to Become Property of Government, in lieu the clause at FAR 52.227-17, in solicitations and contracts for—
(1) Architect-engineer services.
(2) Construction contracts involving architect-engineer services.
PART 528—BONDS AND INSURANCE
25. Revise section 528.310 to read as follows:
Insert the clause at 552.228-5, Government as Additional Insured, in solicitations and contracts that are expected to exceed the simplified acquisition threshold and require work on a Government installation.
PART 529—TAXES
529.401 through 529.401-7126. Remove sections 529.401 through 529.401-71.
27. Add section 529.470 to read as follows:
(a) Insert the clause at 552.229-70, Federal, State, and Local Taxes, in solicitations and contracts estimated to exceed the micro-purchase threshold, but not the simplified acquisition threshold.
(b) Insert the clause at 552.229-71, Federal Excise Tax—DC Government, in solicitations and contracts that allow the District of Columbia Government to place orders under the contract.
PART 532—CONTRACT FINANCING
28. Revise section 532.111 to read as follows:
(a) FAR deviation. GSA has a FAR deviation that allows use of the clause at 552.232-1 in lieu of the FAR clause at 52.232-1. Insert the clause at 552.232-1, Payments, in solicitations and contracts when a fixed-price supply contract, a fixed-price service contract, or a contract for nonregulated communication services is contemplated, in lieu of the FAR clause at 52.232-1.
(b) Construction contracts. Insert the clause at 552.232-5, Payments under Fixed-Price Construction Contracts, in solicitations and contracts when a fixed-price construction contract is contemplated.
29. Revise section 532.706-3 to read as follows:
GSA has a FAR deviation that allows use of the clause in paragraph (a) of this subsection in lieu of the FAR clause at 52.232-39.
(a) Insert the clause at 552.232-39, Unenforceability of Unauthorized Obligations in all solicitations and contracts in lieu of the FAR clause at 52.232-39.
(b) Insert the clause at 552.232-78, Commercial Supplier Agreements-Unenforceable Clauses, in all solicitations and contracts (including orders) when not using FAR part 12.
30. Amend section 532.904 by revising paragraph (b) to read as follows:
(b) An official one level above the contracting officer shall approve justifications exercising the authority prescribed by FAR 32.904(d)(1)(i)(B). The time needed should be determined on a case-by-case basis, but the specified constructive acceptance period shall not exceed 30 days.
31. Revise section 532.908 to read as follows:
(a) Building services contracts. Insert the clause at 552.232-72, Final Payment Under Building Services Contracts, in solicitations and contracts for building services.
(b) Stock, Special Order, and Schedules programs. (1) GSA has a FAR deviation to authorize payment within 10 days of receipt of a proper invoice. The deviation applies only to:
(i) Orders placed by GSA under Stock, Special Order, and Schedules programs;
(ii) That include FAR clause at 52.232-33; and
(iii) For which the order is placed, and the contractor submits invoices using EDI in accordance with the Trading Partner Agreement.
(2) If the contract is not for commercial items, use the clause at 552.232-25, Prompt Payment, in lieu of the FAR clause at 52.232-25.
PART 536—CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
536.51532. In section 536.515 amend paragraphs (a), (b), and (c) by removing the words “to be above” and adding in their place “to exceed”.
33. Amend section 536.7107 by revising paragraph (a) to read as follows:
(a) FAR deviation. GSA has a FAR deviation that allows use of the clause 552.236-79 in lieu of the FAR clause at 52.216-17. Insert a clause substantially the same as the clause at 552.236-79, Construction-Manager-As-Constructor, in solicitations and contracts if construction, dismantling, or removal of improvements is contemplated when a CMc project delivery method will be followed in lieu of the FAR clause at 52.216-17.
PART 537—SERVICE CONTRACTING
34. Revise section 537.110 to read as follows:
(a) Contracts for building services. Except for solicitations and contracts for building services placed under FAR subpart 8.7, insert the clause at 552.237-71, Qualifications of Employees, in solicitations and contracts for building services that are anticipated to exceed the simplified acquisition threshold.
(b) Contracts for guard services. Insert the clause at 552.237-72, Prohibition Regarding “Quasi-Military Armed Forces,” in solicitations and contracts for guard services.
PART 538—FEDERAL SUPPLY SCHEDULE CONTRACTING
538.27335. In section 538.273 amend paragraph (d)(1) by removing the terms “Authorized FSS” and adding in its place the term “Authorized Federal Supply Schedule”.
36. Amend section 538.7204 by revising paragraph (b) to read as follows:
(b) Insert the clause at 552.238-115, Special Ordering Procedures for the Acquisition of Order-Level Materials, in FSS solicitations and contracts authorized to allow for order-level materials.
PART 539—ACQUISITION OF INFORMATION TECHNOLOGY
37. Revise section 539.7002 to read as follows:
Except for solicitations and contracts for personal services with individuals—
(a) Insert the provision at 552.239-70, Information Technology Security Plan and Security Authorization, in solicitations that include information technology supplies, services or systems in which the contractor will have physical or electronic access to government information that directly supports the mission of GSA.
(b) Insert the clause at 552.239-71, Security Requirements for Unclassified Information Technology Resources, in solicitations and contracts containing the provision in paragraph (a) of this section.
PART 541—ACQUISITION OF UTILITY SERVICES
38. Revise section 541.501 to read as follows:
(a) FAR deviation. GSA has a FAR deviation that allows use of the clause at 552.241-70 in lieu of the FAR clause at 52.232-19. Insert the clause at 552.241-70, Availability of Funds for the Next Fiscal Year or Quarter, in lieu of the FAR clause at 52.232-19, in all utility acquisitions.
(b) Utility services. Insert the clause at 552.241-71, Disputes (Utility Contracts), in solicitations and contracts for utility services subject to the jurisdiction and regulation of a utility rate commission.
PART 542—CONTRACT ADMINISTRATION AND AUDIT SERVICES
39. Revise section 542.1107 to read as follows:
Insert the clause at 552.242-70, Status Report of Orders and Shipments, in solicitations and contracts when a requirements or indefinite-quantity contract for Stock or Special Order Program items is contemplated. The clause may be used in indefinite-delivery definite-quantity contracts for Stock or Special Order Program items when close monitoring is necessary because numerous shipments are involved.
PART 543—CONTRACT MODIFICATIONS
40. Revise section 543.205 to read as follows:
Insert the clause at 552.243-71, Equitable Adjustments, in solicitations and contracts that include any of the following FAR clauses: 52.243-4, 52.243-5, or 52.236-2.
PART 546—QUALITY ASSURANCE
41. Revise sections 546.302-70 through 546.312 to read as follows:
(a) Insert the clause at 552.246-70, Source Inspection by Quality Approved Manufacturer:
(1) In FAS solicitations and contracts that—
(i) Will exceed the simplified acquisition threshold;
(ii) Include the FAR clause at 52.246-2; and
(iii) Provide for source inspection for the Stock and Special Order Programs.
(2) In solicitations and contracts that—
(i) Are below the simplified acquisition threshold;
(ii) Include the FAR clause at 52.246-2; and
(iii) Support the Wildfire program; or
(iv) When a pattern of acquisitions demonstrates an ongoing relationship with the contractor.
(b) The contracting officer may authorize inspection and testing at manufacturing plants or other facilities located outside the United States, Puerto Rico, or the U.S. Virgin Islands according to paragraph (a)(1) of the clause at 552.246-70 when any of the following conditions apply and after coordinating the authorization with QVOC and documenting the authorization in the file:
(1) Inspection services are available from another Federal agency with primary inspection responsibility in the geographic area.
(2) An inspection interchange agreement exists with another agency for inspection at a contractor's plant.
(3) Other considerations will ensure more economical and effective inspection consistent with the Government's interest.
Insert the clause at 552.246-71, Source Inspection by Government, in FAS solicitations and contracts where Government personnel at the source will perform inspection.
Insert the clause at 552.246-78, Inspection at Destination, in solicitations and contracts for supplies that require inspection at destination.
Insert the clause at 552.246-72, Final Inspection and Tests, in solicitations and contracts for construction that include the FAR clause at 52.246-12.
42. Revise section 546.710 to read as follows:
Insert the clause at 552.246-77, Additional Contract Warranty Provisions for Supplies of a Noncomplex Nature, in solicitations and contracts that include the FAR clause at 52.246-17.
PART 549—[REMOVED]
43. Under the authority of 40 U.S.C. 121(c), remove part 549.
PART 552—SOLICITATION PROVISIONS AND CONTRACT CLAUSES
44. The authority citation for 48 CFR part 552 continues to read as follows:
Authority: 40 U.S.C. 121(c).
45. Revise sections 552.101-70 through 552.103 to read as follows:
(a) Numbering. (1) GSAR provisions or clauses which are “substantially” the same as a FAR provision or clause ( e.g., 552.232-1, Payments) are identified as follows:
(i) The provision or clause has the same title as the FAR provision or clause.
(ii) The provision or clause has the same number as the FAR provision or clause, except the number is preceded by the number “5”.
(2) GSA prescribed provisions and clauses ( e.g., 552.232-72, Final Payment Under Building Services Contracts) are numbered in the same manner as the FAR, except that—
(i) The number is preceded by the number “5”, and
(ii) The sequential number at the end of the number of the provision or clause is “70” or a higher number.
(b) Prescriptions. Each provision or clause in subpart 552.2 is prescribed at the place in the GSAR where the subject matter of the provision or clause receives its primary treatment. The prescription includes all conditions, requirements, and instructions for using the provision or clause and its alternates, if any. The provision or clause may be referred to in other GSAM locations.
(c) Introductory text. Within subpart 552.2, the introductory text of each provision or clause includes a cross-reference to the location in the GSAR that prescribes its use.
(d) Dates. Since they are subject to revision from time to time, all GSAR provisions, clauses, and alternates are dated; e.g., (DEC 1983). To avoid questions concerning which version of any provision, clause, or alternate is operative in any given solicitation or contract, its date shall be included whether it is incorporated by reference or in full text.
(a) Except for paragraph (b) of this section, GSAR provisions and clauses should be incorporated by reference to the maximum practical extent, rather than being incorporated in full text. Upon request, the contracting officer shall provide the full text of any GSAR provision or clause incorporated by reference.
(b) A GSAR provision or clause should not be incorporated in full text if—
(1) It requires modification or completion by the Government ( e.g., completion of blanks in provisions or clauses) (see FAR 52.104 and 552.104);
(2) It requires completion by the offeror or contractor;
(3) It is identified as a deviation (see 552.103); or
(4) It is used with one or more alternates.
(a) General. When a GSAR provision or clause is used without deviation in a solicitation or contract, it shall be identified by number, title, and date ( e.g., 552.211-77, Packing List (FEB 1996)).
(b) Deviations. (1) Federal Acquisition Regulation deviations. When a GSAR provision or clause is used with an authorized deviation in lieu of a FAR provision or clause in a solicitation or contract, it shall be identified by number, title, date, and the deviation label ( e.g., 552.232-1, Payments (NOV 2009) (DEVIATION FAR 52.232-1)). The deviation label consists of the text “DEVIATION FAR” and the applicable FAR provision or clause number enclosed in parentheses ( e.g., (DEVIATION FAR 52.232-1)).
(2) General Services Administration Acquisition Regulation deviations. When a GSAR provision or clause is used with an authorized deviation in a solicitation or contract, it shall be identified by number, title, date, and the text “(DEVIATION)” inserted after the date ( e.g., 552.232-1, Payments (NOV 2009) (DEVIATION)).
(c) Alternates. When a GSAR provision or clause is used with an alternate in a solicitation or contract, it shall be identified by the basic provision or clause citation and the alternate label ( e.g., 552.211-77, Packing List (FEB 1996) Alternate I (MAY 2003)). The alternate label consists of the word “Alternate”, the alternate number, and date ( e.g., Alternate I (MAY 2003)).
46. Revise section 552.107-70 to read as follows:
GSA has a FAR deviation that allows use of the following provision and clause in lieu of the FAR provision at 52.252-5 and the FAR clause at 52.252-6:
(a) Insert the provision at 552.252-5, Authorized Deviations in Provisions, in solicitations that include any FAR or GSAR provision with an authorized deviation in lieu of the FAR provision at 52.252-5.
(b) Insert the clause at 552.252-6, Authorized Deviations in Clauses, in solicitations and contracts that include any FAR or GSAR clause with an authorized deviation in lieu of the FAR clause at 52.252-6.
47. Amend section 552.211-10 by removing from the introductory text “511.404” and adding “511.404(b)” in its place.
48. Amend section 552.211-12 by—
a. Removing from the introductory text “511.404” and adding “511.503(a)” in its place; and
b. Revising the clause heading.
The revision reads as follows:
Liquidated Damages—Construction (MAR 2019)
49. Amend section 552.211-13 by removing from the introductory text “511.504” and adding “511.503(b)” in its place.
50. Amend section 552.211-70 by removing from the introductory text “511.404” and adding “511.404(b)” in its place.
51. Amend section 552.211-75 by revising the section heading, and the introductory text of Alternate I to read as follows:
Alternate I (MAY 2003). As prescribed at 511.204(b)(2), substitute the following sentence for the last sentence of the basic clause:
52. Revise section 552.211-76 heading to read as follows:
53. Amend section 552.211-77 by revising the introductory text of Alternate I to read as follows:
Alternate I (MAY 2003). As prescribed in 511.204(c), substitute the following paragraphs (a)(3) and (b) for paragraphs (a)(3) and (b) of the basic clause:
54. Amend section 552.211-79 by revising the introductory text of Alternate I to read as follows:
Alternate I (FEB 1996). As prescribed in 511.404(a)(1)(i), substitute the following sentence for the first sentence of the basic clause:
55. Amend section 552.211-80 by removing from the introductory text “511.404(a)(2)” and adding “511.404(a)(1)” in its place.
56. Amend section 552.211-81 by—
a. Removing from the introductory text “511.404(b)” and adding “511.404(a)(2)” in its place; and
b. Revising the introductory text of Alternate I.
The revision reads as follows:
Alternate I (FEB 1996). As prescribed in 511.404(a)(2), add the following paragraph to the basic clause:
57. Amend section 552.211-83 by—
a. Removing from the introductory text “511.204(c)” and adding “511.404(a)(3)” in its place; and
b. Revising the introductory text of Alternate I.
The revision reads as follows:
Alternate I (FEB 1996). As prescribed in 511.404(a)(3), add the following paragraph (b) to the basic clause and redesignate paragraph (b) of the basic clause accordingly.
58. Revise section 552.211-85 heading to read as follows:
59. Revise section 552.211-86 heading to read as follows:
60. Revise section 552.211-87 heading to read as follows:
61. Revise section 552.211-88 heading to read as follows:
62. Revise section 552.211-89 heading to read as follows:
63. Revise section 552.211-90 heading to read as follows:
64. Revise section 552.211-91 heading to read as follows:
65. Revise section 552.211-92 heading to read as follows:
66. Amend section 552.211-94 by—
a. Revising the section heading; and
b. Removing from the introductory text “511.404(d)” and adding “511.404(a)(4)” in its place.
The revision reads as follows:
67. Amend section 552.212-71 by removing from the introductory text “512.301(a)(2)” and adding “512.301(a)(1)” in its place.
68. Amend section 552.212-72 by removing from the introductory text “512.301(a)(3)” and adding “512.301(a)(2)” in its place.
69. Amend section 552.216-73, in Alternate I by removing from the end of the paragraph “basic provision” and adding “basic provision and redesignate paragraph (e) accordingly” in its place.
70. Amend section 552.216-75 by—
a. Removing from the introductory text the word “provision” and adding the word “clause” in its place; and
b. Removing from the end of the section “(End of Provision)” and adding “(End of clause)” in its place.
71. Amend section 552.217-73 by—
a. Redesignating section 552.217-73 as 552.215-73;
b. Revising the heading of the newly redesignated section 552.215-73; and
c. Removing from the introductory text “515.209-70(b)” and adding “515.209-70(c)” in its place.
The revision reads as follows:
72. Amend section 552.219-70 by removing from the introductory text “519.508” and adding “519.507” in its place.
73. Amend section 552.219-74 by removing from the introductory text “519.870-8” and adding “519.870-2(a)” in its place.
74. Amend section 552.227-70 by—
a. Removing from the introductory text “527.409” and adding “527.409(a)” in its place; and
b. Revising the clause heading.
The revision reads as follows:
Government Rights (Unlimited) (MAY 1989) (Deviation FAR 52.227-17)
75. Amend section 552.227-71 by revising the introductory text and clause heading to read as follows:
As prescribed in 527.409-70(b), insert the following clause:
Drawings and Other Data To Become Property of Government (MAY 1989) (Deviation FAR 52.227-17)
76. Amend section 552.229-70 by removing from the introductory text “529.401-70” and adding “529.470(a)” in its place.
77. Amend section 552.229-71 by removing from the introductory text “529.401-71” and adding “529.470(b)” in its place.
78. Amend section 552.232-1 by removing from the introductory text “532.908(a)” and adding “552.111(a)” in its place.
79. Amend section 552.232-5 by removing from the introductory text “532.111” and adding “552.111(b)” in its place.
80. Amend section 552.232-25 by removing from the introductory text “532.908(c)(2)” and adding “532.908(b)(2)” in its place.
81. Amend section 552.232-39 by revising the section heading, the introductory text, and the clause heading to read as follows:
As prescribed in 532.706-3, insert the following clause:
Unenforceability of Unauthorized Obligations (FEB 2018) (Deviation FAR 52.232-39)
82. Amend section 552.232-72 by removing from the introductory text “532.904(b)” and adding “532.908(a)” in its place.
83. Amend section 552.232-78 by—
a. Revising the introductory text; and
b. Removing from the clause heading “(FEB. 2018)” and adding “(FEB 2018)” in its place.
The revision reads as follows:
As prescribed in 532.706-3(b), insert the following clause:
84. Amend section 552.236-71 in Alternate I by revising the introductory text to read as follows:
Alternate I (MAR 2019). As prescribed in 536.571, substitute the following paragraphs (d), (e), (f), and (g) for paragraphs (d), (e), (f), and (g) of the basic clause:
85. Amend section 552.236-74 by removing from the introductory text “insert the” and adding “insert a provision substantially the same as the” in its place.
86. Amend section 552.236-75 by removing from the introductory text “insert the” and adding “insert a provision substantially the same as the” in its place.
87. Amend section 552.236-76 by revising the section heading, the introductory text, and the introductory text of Alternate I to read as follows:
As prescribed in 536.270-5(c), insert a provision substantially the same as the following provision:
Alternate I (MAR 2019). As prescribed in 536.270-5(c), redesignate the basic provision as paragraph (a) and add the following paragraph (b) to the basic provision:
88. Amend section 552.236-77 by removing from the introductory text “insert the” and adding “insert a clause substantially the same as the” in its place.
89. Amend section 552.236-79 by revising the introductory text and clause heading to read as follows:
As prescribed in 536.7107(a), insert a clause substantially the same as the following clause:
Construction-Manager-As-Constructor (JAN 2020) (Deviation FAR 52.216-17)
90. Amend section 552.236-80 by removing from the introductory text “insert the” and adding “insert a clause substantially the same as the” in its place.
91. Amend section 552.238-77 by—
a. Removing from the clause heading “(FEB 2020)” and adding “(MAR 2020)” in its place; and
b. Removing from the end of the section “End of Clause” and adding “(End of clause)” in its place.
92. In section 552.238-81 amend Alternate I by removing from the introductory text “substitute the following paragraph” and adding “substitute the following paragraphs” in its place.
93. Amend section 552.238-82 by—
a. Removing from the clause heading “(MAY 2019)” and adding “(MAR 2020)” in its place;
b. Removing paragraph (e), and
c. In Alternate I removing “(MAY 2019)” and adding “(MAR 2020)” in its place.
94. Amend section 552.241-70 by revising the introductory text and the clause heading to read as follows:
As prescribed in 541.501(a), insert the following:
Availability of Funds for the Next Fiscal Year or Quarter (AUG 2010) (Deviation FAR 52.232-19)
95. Amend section 552.241-71 by revising the introductory text to read as follows:
As prescribed in 541.570(b), insert the following clause:
96. Amend section 552.242-70 by removing from the clause heading “(FEB 9, 2009)” and adding “(FEB 2009)” in its place.
97. Amend section 552.246-70 by removing from the clause heading “(JUL 09)” and adding “(JUL 2009)” in its place.
98. Amend section 552.246-71 by removing from the clause heading “(JUNE 1, 2009)” and adding “(JUN 2009)” in its place.
99. Amend section 552.246-77 by—
a. Revising the introductory text; and
b. Removing from the clause heading “(JUL 09)” and adding “(JUL 2009)” in its place.
The revision reads as follows:
As prescribed in 546.710, insert the following clause:
100. Amend section 552.246-78 by removing from the clause heading “(JUL 09)” and adding “(JUL 2009)” in its place.
101. Revise section 552.252-5 to read as follows:
As prescribed in 552.107-70(a), insert the following provision:
Authorized Deviations in Provisions (DATE) (Deviation FAR 52.252-5)
(a) Deviations to FAR provisions. This solicitation identifies any authorized deviation to a Federal Acquisition Regulation (FAR) (48 CFR chapter 1) provision by—
(1) The addition of “(DEVIATION)” after the date of the FAR provision when an authorized deviation to a FAR provision is being used, and
(2) The addition of “(DEVIATION FAR (provision number))” after the date of the GSAR provision when a GSAR provision is being used in lieu of a FAR provision.
(b) Deviations to GSAR provisions. This solicitation identifies any authorized deviation to a General Services Administration Acquisition Regulation (GSAR) (48 CFR chapter 5) provision by the addition of “(DEVIATION)” after the date of the provision.
(c) “Substantially the same as” provisions. Changes in wording of provisions prescribed for use on a “substantially the same as” basis are not considered deviations.
(End of provision)
102. Revise section 552.252-6 to read as follows:
As prescribed in 552.107-70(b), insert the following clause:
Authorized Deviations in Clauses (DATE) (Deviation FAR 52.252-6)
(a) Deviations to FAR clauses. This solicitation or contract identifies any authorized deviation to a Federal Acquisition Regulation (FAR) (48 CFR chapter 1) clause by—
(1) The addition of “(DEVIATION)” after the date of the FAR clause when an authorized deviation to a FAR clause is being used, and
(2) The addition of “(DEVIATION FAR (clause number))” after the date of the GSAR clause when a GSAR clause is being used in lieu of a FAR clause.
(b) Deviations to GSAR clauses. This solicitation or contract identifies any authorized deviation to a General Services Administration Acquisition Regulation (GSAR) (48 CFR chapter 5) clause by the addition of “(DEVIATION)” after the date of the clause.
(c) “Substantially the same as” clauses. Changes in wording of clauses prescribed for use on a “substantially the same as” basis are not considered deviations.
(End of clause)
103. Amend section 552.270-1 by—
a. In Alternate I removing from the introductory text “paragraph for paragraph (c)(2)(i)” and adding “paragraph (c)(2)(i) for paragraph (c)(2)(i)” in its place; and
b. In Alternate II removing from the introductory text “paragraph for paragraph (e)(4)” and adding “paragraph (e)(4) for paragraph (e)(4)” in its place.
104. Amend section 552.270-31 by revising Alternate I to read as follows:
Alternate I (SEP 1999). As prescribed in 570.703, delete paragraphs (a)(2) and (b) of the basic clause, and redesignate the remaining paragraphs accordingly.
PART 570—ACQUIRING LEASEHOLD INTERESTS IN REAL PROPERTY
105. The authority citation for 48 CFR part 570 continues to read as follows:
Authority: 40 U.S.C. 121(c).
106. Amend section 570.701 by removing from the introductory text “Include provisions” and adding “Insert provisions” in its place.
107. Amend section 570.702 by revising the introductory text and the entry for 552.270-1 to read as follows:
Each SFO must include provisions substantially the same as the following, unless the contracting officer determines that the provision is not appropriate. The contracting officer shall document the file with the basis for omitting or substantially changing a provision.
552.270-1 Instructions to Offerors—Acquisition of Leasehold Interests in Real Property. Use the provision with its Alternate I if it is advantageous to the Government to allow offers to be submitted up to the exact time specified for award. Use the provision with its Alternate II if the Government intends to award without discussions.
108. Amend section 570.703 by—
a. Revising paragraph (a) introductory text, and the entry for 552.270-4 in paragraph (a); and
b. Revising paragraph (b).
The revisions read as follows:
(a) Insert clauses substantially the same as the following in solicitations and contracts for leasehold interests in real property that exceed the simplified lease acquisition threshold, unless the contracting officer determines that a clause is not appropriate. The contracting officer shall document the file with the basis for omitting or substantially changing a clause. A deviation is not required under section 570.704 to determine that a clause in this section is not appropriate. The following clauses may be inserted in solicitations and contracts for leasehold interests in real property at or below the simplified lease acquisition threshold.
552.270-4 Definitions. Insert this clause if including the clause at 552.270-28.
(b) Insert the following clauses in solicitations and contracts for leasehold interests in real property:
552.270-30 Price Adjustment for Illegal or Improper Activity.
552.270-31 Prompt Payment.
552.270-32 Covenant Against Contingent Fees.
[FR Doc. 2021-20541 Filed 10-5-21; 8:45 am]
BILLING CODE 6820-61-P