GENERAL SERVICES ADMINISTRATION
                48 CFR Parts 515, 538 and 552
                [GSAR Case 2019G503; Docket No. 20220019; Sequence No. 1]
                RIN 3090AK09
                General Services Administration Acquisition Regulation (GSAR); Streamline GSA Commercial Contract Clause Requirements
                
                    AGENCY:
                    Office of Acquisition Policy, General Services Administration.
                
                
                    ACTION:
                    Proposed rule.
                
                
                    SUMMARY:
                    The General Services Administration (GSA) is proposing to amend the General Services Administration Acquisition Regulation (GSAR) to clarify and streamline the clauses contracting officers should reference in GSA acquisitions for commercial products and commercial services. The rulemaking proposes to update several clauses and other related parts by eliminating out of date references and any requirements that are not necessary by law.
                
                
                    DATES:
                    Interested parties should submit written comments to the Regulatory Secretariat as noted below on or before February 21, 2023 to be considered in the formation of the final rule.
                
                
                    ADDRESSES:
                    
                        Submit comments in response to GSAR Case 2019G503 to: 
                        Regulations.gov: http://www.regulations.gov.
                         Submit comments via the Federal eRulemaking portal by searching for GSAR Case 2019G503. Select the link Comment Now that corresponds with GSAR Case 2019G503. Follow the instructions provided at the Comment Now screen. Please include your name, company name (if any), and GSAR Case 2019G503 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 2019G503, 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:
                    
                        Mr. Nicholas Giles, Procurement Analyst, at 
                        GSARPolicy@gsa.gov,
                         for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 2025014755 or 
                        GSARegsec@gsa.gov.
                         Please cite GSAR Case 2019G503.
                    
                
            
            
                SUPPLEMENTARY INFORMATION:
                I. Background
                
                    As the largest consumer of commercial products and services, the federal government must ensure its contracting officers include the appropriate safeguards when procuring these products and services. As part of GSA's regulatory review efforts, GSA identified several duplicative and outdated clauses incorporated by reference at GSAR 552.21271 
                    Contract Terms and Conditions Applicable to GSA Acquisitions of Commercial Products and Commercial Services,
                     GSAR 552.21272 
                    Contract Terms and Conditions Required To Implement Statutes or Executive Orders Applicable to GSA Acquisition of Commercial Products and Commercial Services,
                     and other related GSAR sections. This proposed rule streamlines and reorganizes the references in GSAR Clauses 552.21271 and 552.21272, and other related GSAR sections for contracting officers to consider inserting in solicitations and contracts for procuring commercial products and services. As a result, the deletion of some of the references within these clauses will reduce the time contracting officers spend on reviewing for applicability for commercial procurements.
                
                GSA is amending the GSAR to reorganize 552.21271 and 552.21272 to reduce duplication of content and to ensure consistency within GSA's guidance as it relates to the acquisition of commercial products and commercial services. In addition, GSA is amending the GSAR to reorganize 515.408 and 538.273 to correct technical errors and clarify clauses.
                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
                
                    GSA's review of the GSAR clauses for procuring commercial products and services resulted in the reorganization of GSAR clauses and applicable parts including the removal, transferring and 
                    
                    renumbering of referenced clauses within GSAR 552.21271, 552.21272 and other applicable GSAR sections to ensure contracting officers include the appropriate provisions and clauses in commercial contracts and solicitations. These changes can be categorized into three areas: (1) reorganization of commercial clauses and applicable parts; (2) relocation of an FSS clause; and (3) editorial changes.
                
                1. Reorganization of Commercial Clauses and Applicable Parts
                The proposed changes to the GSAR will:
                a. Remove references to five (5) obsolete clauses in 552.21271 that were deleted in previous GSAR cases. Based on GSA's review of GSAR 552.21271, this rule proposes to remove the references to the following five (5) obsolete clauses:
                
                    (1) 552.22870 
                    Workers' Compensation Laws
                    ; 
                    1
                    
                
                
                    
                        1
                         See 74 FR 17099, dated May 14, 2009, deleting GSAR clause 552.22870.
                    
                
                
                    (2) 552.23271 
                    Adjusting Payment
                    ; 
                    2
                    
                
                
                    
                        2
                         See 74 FR 54915, dated November 25, 2009, deleting GSAR clause 552.23271.
                    
                
                
                    (3) 552.23273 
                    Availability of Funds
                    ; 
                    3
                    
                
                
                    
                        3
                         Ibid., deleting GSAR clause 552.23273.
                    
                
                
                    (4) 552.23278 
                    Payment Information
                    ; 
                    4
                    
                     and
                
                
                    
                        4
                         Ibid., deleting GSAR clause 552.23278.
                    
                
                
                    (5) 552.24676 
                    Warranty of Pesticides
                    .
                    5
                    
                
                
                    
                        5
                         See 74 FR 26110, dated June 1, 2009, deleting GSAR clause 552.24676.
                    
                
                b. Remove references to clauses that only apply to procurements under the FSS or Multiple Award Schedule (MAS) program from GSAR 552.21271 and 552.21272. Based on GSA's review of GSAR 552.21271 and 552.21272, this proposed rule removes the following three (3) clauses that apply exclusively to FSS or MAS contracts and are not appropriate for broad commercial procurements:
                
                    (1) 552.21572 
                    Price AdjustmentFailure to Provide Accurate Information
                    ; 
                    6
                    
                
                
                    
                        6
                         The prescription for this clause at GSAR 515.408(d) directs contracting officers to insert this clause in solicitations and contracts under the MAS program when the contract contains the basic clause 552.23880 Industrial Funding Fee and Sales Reporting.
                    
                
                
                    (2) 552.23873 
                    Identification of Electronic Office Equipment Providing Accessibility for the Handicapped;
                     and
                
                
                    (3) 552.23878 
                    Identification of Products That Have Environmental Attributes.
                
                
                    Removing references to these three (3) clauses will ensure consistency with GSA's previous amendments to the GSAR to consolidate clauses associated solely with GSA's FSS or MAS contracts into GSAR Part 538.
                    7
                    
                
                
                    
                        7
                         See 75 FR 5241, dated February 2, 2010, and 84 FR 17030, dated April 23, 2019.
                    
                
                c. Relocate all references to commercial contract clauses required by law from GSAR clause 552.21271, which contains clauses required for GSA policy only, and add to GSAR clause 552.21272, which is focused on statutory requirements. The two (2) clauses whose references are transferred and their respective statutory authorities are as follows:
                
                    (1) 552.21570 
                    Examination of Records.
                     This clause is required by Examination of Facilities and Records of Contractor, 41 U.S.C. 4706
                    ; and
                
                
                    (2) 552.23223 
                    Assignment of Claims.
                     This clause is required by the Assignment of Claims Act, 41 U.S.C. 6305, et. al.
                
                2. Relocation of an FSS Clause
                The proposed changes to the GSAR will relocate the prescription for GSAR 552.21572 at paragraph (d) of 515.408 to the new paragraph (d)(36) at 538.273, and for conforming changes, renumber the price adjustment clause at GSAR 552.21572 to 552.238117. The relocation of this clause and its prescription is consistent with GSA's rewrite efforts to move all FSS or MAS clauses into GSAR Part 538.
                3. Editorial Changes
                The proposed change to the GSAR will:
                
                    a. Delete GSAR 515.408(a)(1) to remove obsolete reference to GSAR clause 552.21270 
                    Preparation of Offer (Multiple Award Schedule)
                     and renumber accordingly. On February 2, 2010, GSA deleted GSAR 552.21270 
                    8
                    
                     but retained its text in GSA internal policy at IFSS972.
                    9
                    
                     The proposed rule will eliminate all references to the obsolete GSAR clause 552.21270 from GSAR 515.408.
                
                
                    
                        8
                         See 75 FR 5241 deleting GSAR clause 552.21270 
                        Preparation of Offer (Multiple Award Schedule)
                         from GSAR Part 512 and contemplating moving the clause to GSAR Part 538 as a better fit. The final rule for this case did not move the clause, but did delete the clause.
                    
                
                
                    
                        9
                         See Acquisition Letter MV2003, dated February 27, 2020, authorizing the continued use of Clause IFSS972, Preparation of Offer (Multiple Award Schedule).
                    
                
                
                    b. Revise GSAR 552.21271 to change the title of the referenced clause from GSAR 552.23272 
                    Final Payment
                     to GSAR 552.23272 
                    Final Payment Under Building Services Contracts;
                
                c. Correct grammatical errors in paragraphs (d)(2) and (d)(19) of 538.273; and
                d. Incorporate minor editorial changes to enhance the readability of the following provision and clause designations and prescriptions:
                (1) paragraph (d)(22) of GSAR 538.273;
                
                    (2) paragraph (a) of 
                    GSAR
                     552.21271; and
                
                (3) the introductory text of GSAR 552.21272.
                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. OMB anticipates that this will not be a significant regulatory action and, therefore, will not be 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. 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
                    . This rule is not anticipated to be a major rule under 5 U.S.C. 804(2).
                
                VI. Regulatory Flexibility Act
                
                    The General Services Administration 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. 601, 
                    et seq.
                     because the proposed changes to the GSAR do not add any requirement but rather will reorganize clauses by removing, transferring, re-titling and renumbering referenced clauses and will make technical and editorial changes to ensure contracting officers incorporate the correct clauses when procuring commercial products and 
                    
                    commercial services. 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 Initial Regulatory Flexibility Analysis (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. The General Services Administration invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.
                The General Services Administration will also consider comments from small entities concerning the existing regulations in subparts affected by this 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 2019G503) in correspondence.
                The analysis is summarized as follows:
                The General Services Administration is proposing to amend the GSAR at 552.21271 and 552.21272 and related parts to clarify and streamline the contract terms and conditions applicable to GSA acquisitions of commercial products and commercial services.
                The objective of the rule is to reorganize the appropriate GSAR clauses and parts currently used in commercial solicitations and contracts to reduce duplication and to ensure consistency within GSA's guidance.
                The rule ensures that contracting officers consider the appropriate clauses in solicitations and contracts for procurements for commercial products and commercial services. The legal basis for the rule is Title 40 of the United States Code (U.S.C.) Section 121.
                The rule applies to large and small businesses, which are awarded contracts for the acquisition of commercial products, including commercial components, and commercial services. Information generated from the System for Award Management (SAM), for Fiscal Years 20202021 has been used as the basis for estimating the number of contractors that may involve the procurement of commercial services and commercial products. The analysis focused on contracts for commercial items procured pursuant to the procedures in GSAR Part 512 (Acquisition of Commercial Items) and clause 552.2124 that was included in the contract.
                Examination of this data revealed in fiscal years 2020 and 2021, an average of 23,603 contracts were awarded for commercial products and services. Of these 23,603 new awards, an average of 11,297 (48%) contract awards were to small business entities.
                This rule does not include any new reporting, recordkeeping, or other compliance requirements for small businesses.
                The General Services Administration does not expect this rule to have a significant economic impact on a substantial number of small business entities within the meaning of the Regulatory Flexibility Act, at 5 U.S.C. 601. This rule merely reorganizes requirements currently in use in solicitations and contracts involving the acquisition of commercial products and commercial services, and does not implement new or changed requirements.
                This 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 are already being followed.
                VII. Paperwork Reduction Act
                
                    The Paperwork Reduction Act does not apply because the changes to the GSAR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget (OMB) under 44 U.S.C. 3501, 
                    et seq.
                
                
                    List of Subjects in 48 CFR Parts 515, 538 and 552
                    Government procurement.
                
                
                    Jeffrey A. Koses,
                    Senior Procurement Executive, Office of Acquisition Policy, Office of Government-wide Policy, General Services Administration.
                
                Therefore, GSA proposes to amend 48 CFR Parts 515, 538 and 552 as set forth below:
                1. The authority citation for 48 CFR parts 515, 538 and 552 continues to read as follows:
                
                    Authority: 
                    40 U.S.C. 121(c).
                
                
                    PART 515CONTRACTING BY NEGOTIATION
                    
                        515.408
                         [Amended]
                    
                
                2. Amend section 515.408 by
                a. Removing paragraph (a)(1);
                b. Redesignating paragraphs (a)(2), (a)(3) and (a)(4) as paragraphs (a)(1), (a)(2) and (a)(3);
                 c. Removing from the introductory text of paragraph (b), Please refer to Clause 552.21270, Preparation of Offer (Multiple Award Schedule), for additional information concerning your offer.;
                d. Removing from paragraph (b)(3) the phrase, (See definition of concession and discount in 552.21270.);
                e. Removing from paragraph (c) the first sentence in Column 2;
                 f. Removing paragraph (d); and
                g. Redesignating paragraph (e) as paragraph (d).
                
                    PART 538FEDERAL SUPPLY SCHEDULE CONTRACTING
                
                3. Amend section 538.273 by
                a. Revising the introductory text of paragraph (d)(22); and
                b. Adding paragraph (d)(37).
                The revision and addition read as follows:
                
                    538.273 
                    FSS solicitation provisions and contract clauses.
                    
                    (d) * * *
                    (22) 552.23898, Clauses for Overseas Coverage. Use only in FSS solicitations and contracts when overseas acquisition is contemplated. The GSAR clauses and GSAR provisions in paragraphs (d)(22)(i) through (xi) of this section shall also be inserted in full text, when applicable.
                    
                    (37) 552.238117, Price AdjustmentFailure to Provide Accurate Information. Use only in FSS solicitations and contracts under the MAS program. This clause is used when the contract contains the basic clause 552.23880 Industrial Funding Fee and Sales Reporting.
                    
                
                
                    PART 552SOLICITATION PROVISIONS AND CONTRACT CLAUSES
                
                4. Revise section 552.21271 to read as follows:
                
                    552.21271 
                    Contract Terms and Conditions Applicable to GSA Acquisition of Commercial Products and Commercial Services.
                    As prescribed in 512.301(a)(1), insert the following clause:
                    
                        Contract Terms and Conditions Applicable to GSA Acquisitions of Commercial Products and Commercial Services (Jan, 2022)
                        
                            (a) The Contractor agrees to comply with any clause that is incorporated herein by reference to implement agency policy applicable to acquisition of commercial products, including commercial components, and commercial services. The clause in effect based on the applicable regulation cited on the date the solicitation is issued applies unless otherwise stated herein. The 
                            
                            Contracting Officer should check the clauses in paragraph (b) that apply or delete the clauses that do not apply from the list. The Contracting Officer may add the date of the clause if desired for clarity. The GSAR clauses in paragraph (b) of this section are incorporated by reference.
                        
                        (b) Clauses. 
                        552.20371 Restriction on Advertising
                        552.21173 Marking
                        552.21970 Allocation of OrdersPartially Set-Aside Items
                        552.22970 Federal, State, and Local Taxes
                        552.23272 Final Payment Under Building Services Contracts
                        552.23771 Qualifications of Employees
                        552.24270 Status Report of Orders and Shipments
                    
                      
                
                5. Revise section 552.21272 to read as follows:
                
                    552.21272 
                    Contract Terms and Conditions Required To Implement Statutes or Executive Orders Applicable to GSA Acquisition of Commercial Products and Commercial Services.
                    As prescribed in 512.301(a)(2), insert the following clause:
                    
                        Contract Terms and Conditions Required To Implement Statutes or Executive Orders Applicable to GSA Acquisition of Commercial Products and Commercial Services (Jan 2022)
                        The Contractor agrees to comply with any provision or clause that is incorporated herein by reference to implement provisions of law or Executive Orders applicable to acquisition of commercial items or components. The provision or clause in effect based on the applicable regulation cited on the date the solicitation is issued applies unless otherwise stated herein. The contracting officer should either check the provisions and clauses that apply or delete the provisions and clauses that do not apply from the lists in paragraphs (a) and (b). The contracting officer may add the date of the provision or clause if desired for clarity. The GSAR provisions in paragraph (a) and GSAR clauses in paragraph (b) are incorporated by reference.
                        (a) Provisions.
                        (b) Clauses. 
                        552.21570 Examination of Records by GSA
                        552.22370 Hazardous Substances
                        552.22371 Nonconforming Hazardous Material
                        552.22373 Preservation, Packaging, Packing, Marking, and Labeling of Hazardous Materials (HAZMAT) for Shipments.
                        552.23223 Assignment of Claims
                    
                    (End of clause)
                
                
                    552.21572
                     [Removed and Reserved]
                
                6. Remove and reserve section 552.21572.
                7. Add section 552.238117 to read as follows:
                
                    552.238117 
                    Price AdjustmentFailure to Provide Accurate Information.
                    As prescribed in 538.273(d)(36), insert the following clause:
                    
                        Price AdjustmentFailure To Provide Accurate Information (Aug 1997)
                        (a) The Government, at its election, may reduce the price of this contract or contract modification if the Contracting Officer determines after award of this contract or contract modification that the price negotiated was increased by a significant amount because the Contractor failed to:
                        (1) Provide information required by this solicitation/contract or otherwise requested by the Government; or
                        (2) Submit information that was current, accurate, and complete; or
                        (3) Disclose changes in the Contractor's commercial pricelist(s), discounts or discounting policies which occurred after the original submission and prior to the completion of negotiations.
                        (b) The Government will consider information submitted to be current, accurate and complete if the data is current, accurate and complete as of 14 calendar days prior to the date it is submitted.
                        (c) If any reduction in the contract price under this clause reduces the price for items for which payment was made prior to the date of the modification reflecting the price reduction, the Contractor shall be liable to and shall pay the United States
                        (1) The amount of the overpayment; and
                        (2) Simple interest on the amount of such overpayment to be computed from the date(s) of overpayment to the Contractor to the date the Government is repaid by the Contractor at the applicable underpayment rate effective each quarter prescribed by the Secretary of Treasury under 26 U.S.C. 6621(a)(2).
                        (d) Failure to agree on the amount of the decrease shall be resolved as a dispute.
                        (e) In addition to the remedy in paragraph (a) of this clause, the Government may terminate this contract for default. The rights and remedies of the Government specified herein are not exclusive, and are in addition to any other rights and remedies provided by law or under this contract.
                    
                    (End of clause)
                
            
            [FR Doc. 202227106 Filed 121922; 8:45 am]
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