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                            General Services Acquisition Manual (GSAM)
                            Part 538 - Federal Supply Schedule Contracting
        
                  GSAM
GSAM
Change Number: Change 178 GSAR Case 2020-G511 Effective Date: 03/25/2024
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Part 538 - Federal Supply Schedule ContractingPart 538 - Federal Supply Schedule Contracting       538.000 Scope of part.                                          538.001 General.                                          Subpart 538.2 - Establishing and Administering Federal Supply Schedules                                                         538.201 Coordination requirements.                                                            538.270 Solicitation, evaluation, and award of Federal Supply Schedule (FSS) contracts.                                                                           538.270-1 Evaluation of offers without access to transactional data.                                                                              538.270-2 Evaluation of offers with access to transactional data.                                                                              538.270-3 Use of clause fill-in information.                                                                                                           538.271 FSS contract awards.                                                            538.272 MAS price reductions.                                                            538.273 FSS solicitation provisions and contract clauses.                                                                             Subpart 538.70 - Use of Federal Supply Schedule Contracts by Eligible Non-Federal Entities                                                         538.7000 Scope of subpart.                                                            538.7001 Definitions                                                            538.7002 Authorities .                                                                           538.7002-1 Cooperative purchasing program.                                                                              538.7002-2 Disaster purchasing program.                                                                              538.7002-3 Public health emergencies program.                                                                              538.7002-4 Qualified nonprofit agencies for the blind or other severely disabled.                                                                              538.7002-5 Qualified relief or disaster assistance organizations.                                                                              538.7002-6 Indian Self-Determination and Education Assistance Act (ISDEAA).                                                                              538.7002-7 Native American Housing Assistance and Self Determination Act (NAHASDA).                                                                              538.7002-8 Native American Housing Assistance and Self Determination Act (NAHASDA).                                                                              538.7002-9 Tribally controlled schools.                                                                              538.7002-10 1122 Program.                                                                                                           538.7003 Non-Federal entity requirements.                                                            538.7004 GSA responsibilities.                                                            538.7005 Contract clause.                                                                             Subpart 538.71 - [Reserved]                                          Subpart 538.72 - Order-level Materials                                                         538.7200 Definitions.                                                            538.7201 General.                                                            538.7202 Awarding Order-Level Materials in FSS contracts.                                                            538.7203 Administering Order-Level Materials in FSS contracts.                                                            538.7204 Contract clauses.    **Parent topic:**  General Services Administration Acquisition Manual538.000 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.Subpart 538.2 - Establishing and Administering Federal Supply Schedules 	  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).538.270 Solicitation, evaluation, and award of Federal Supply Schedule (FSS) contracts.           538.270-1 Evaluation of offers without access to transactional data. 		    (a)                   *Applicability*. Utilize this evaluation methodology for negotiating MAS offers when the commercial sales practices format is included in the solicitation (see  515.408). 				         				         					          (b)  When offerors have commercial catalogs, negotiate concessions from established catalogs, including price and non-price terms and conditions. 				         				         					          (c)  The Government will seek to obtain the offeror’s best price (the best price given to the most favored customer). However, the Government recognizes that the terms and conditions of commercial sales vary and there may be legitimate reasons why the best price is not achieved. 				         				         					          (d)  Establish negotiation objectives based on a review of relevant data and determine price reasonableness. 				         				         					          (e)  When establishing negotiation objectives and determining price reasonableness, compare the terms and conditions of the MAS solicitation with the terms and conditions of agreements with the offeror’s commercial customers. When determining the Government’s price negotiation objectives, consider the following factors: 					           						             							              (1)  Aggregate volume of anticipated purchases. 						             						             							              (2)  The purchase of a minimum quantity or a pattern of historic purchases. 						             						             							              (3)  Prices taking into consideration any combination of discounts and concessions offered to commercial customers. 						             						             							              (4)  Length of the contract period. 						             						             							              (5)  Warranties, training, and/or maintenance included in the purchase price or provided at additional cost to the product prices 						             						             							              (6)  Ordering and delivery practices. 						             						             							              (7)  Any other relevant information, including differences between the MAS solicitation and commercial terms and conditions that may warrant differentials between the offer and the discounts offered to the most favored commercial customer(s). For example, an offeror may incur more expense selling to the Government than to the customer who receives the offeror’s best price, or the customer (*e.g.*, dealer, distributor, original equipment manufacturer, other reseller) who receives the best price may perform certain value-added functions for the offeror that the Government does not perform. In such cases, some reduction in the discount given to the Government may be appropriate. If the best price is not offered to the Government, you should ask the offeror to identify and explain the reason for any differences. Do not require offerors to provide detailed cost breakdowns. 						             					           				         				         					          (f)  You may award a contract containing pricing which is less favorable than the best price the offeror extends to any commercial customer for similar purchases if you make a determination that both of the following conditions exist: 					           						             							              (1)  The prices offered to the Government are fair and reasonable, even though comparable discounts were not negotiated. 						             						             							              (2)  Award is otherwise in the best interest of the Government. 						             					           				         				         					          (g)  State clearly in the award document the price/discount relationship between the Government and the identified commercial customer (or category of customers) upon which the award is based.538.270-2 Evaluation of offers with access to transactional data. 		    (a)                   *Applicability.* Utilize this evaluation methodology for negotiating MAS offers when the commercial sales practices format is not included in the solicitation (see  515.408). 				         				         					          (b) Contracting Officers shall utilize the techniques in FAR 15.404 when evaluating pricing for MAS offers. 				         				         					          (c)  Order of preference. When evaluating MAS offers and establishing negotiation objectives, Contracting Officers shall– 					           						             							              (1) Use the following data that is already readily available in accordance with FAR 15.404-1(b)(2)(ii): 							               								                 									                  (i)  Prices paid information on contracts for the same or similar items. 								                 								                 									                  (ii)  Contract-level prices on other MAS contracts or other government-wide contracts for the same or similar items. 								                 								                 									                  (iii)  Commercial data sources that consolidate and normalize prices offered by commercial vendors to the general public to compare prices for the same or similar items. 								                 							               						             						             							              (2)  If the Contracting Officer cannot determine the prices offered to be fair and reasonable based on the data described in 538.270-2(c)(1), perform market research to compare prices for the same or similar items in accordance with FAR 15.404-1(b)(2)(vi). 						             						             							              (3)  If the Contracting Officer cannot determine the prices offered to be fair and reasonable based on the data described in538.270-2(c)(1) or (2), perform an analysis of data other than certified cost or pricing data (as defined at FAR 2.101) provided by the offeror in accordance with FAR 15.404-1(b)(2)(vii).538.270-3 Use of clause fill-in information.       (a)                   *General.* The fill-in information required by GSAR  538.273(e) outlines the timeframe that orders must be completed and provides for—                                                         (1)The exercise of task and delivery order options after the FSS contract ordering period, if those options were evaluated as part of the initial award and the order is completed within the timeframe outlined in  538.273(e);                                                            (2) The FSS contract to remain an active contract until the final order is closed out; and                                                            (3)The FSS contract to govern the terms and conditions with respect to active task and delivery orders (e.g., price adjustments) to the same extent as if the orders were completed during the FSS contract ordering period.                                                                             (b)  *Continuity of services*. The fill-in information prescribed in  538.273(e) does not preclude use of FAR clause 52.217-8 by ordering activities. However, the clause may only be used if the extension does not extend the cumulative term of the task order beyond the timeframe outlined in  538.273(e).538.271 FSS contract awards.       (a) FSS awards will be for commercial products and commercial services. Negotiate contracts as a discount from established catalog prices.                                          (b) Before awarding any FSS awards determine that the offered prices are fair and reasonable (see FAR Subpart 15.4 and  538.270). Document the negotiation and your determination using FAR 15.406-3 as guidance.538.272 MAS price reductions. 		    (a)                   *Applicability*. This section applies when the contract contains the basic clause  552.238-80 Industrial Funding Fee and Sales Reporting. 				         				         					          (b)  The basic clause and Alternate I of  552.238-81, Price Reductions, requires the contractor to maintain during the contract period the negotiated price/discount relationship (and/or term and condition relationship) between the eligible ordering activities and the offeror’s customer or category of customers on which the contract award was predicated (see  538.271). If a change occurs in the contractor’s commercial pricing or discount arrangement applicable to the identified commercial customer (or category of customers) that results in a less advantageous relationship between the eligible ordering activities and this customer or category of customers, the change constitutes a “price reduction.” 				         				         					          (c)  Ensure that the contractor understands the requirements of section  552.238-81 and agrees to report all price reductions to the Contracting Officer as provided for in the clause.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. Use only in FSS solicitations for                         electronic office equipment.                                                            (2)                                                     552.238-74, Introduction of                         New Supplies and Services Special Item Number (SIN). 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 Schedules). Use in FSS standing solicitations.                                                            (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 FAR Clause 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. Clause  552.238-81 Alternate I                         should also be used when vendors agree to include clause  552.238-80 Alternate I in                         the contract.                                                            (5)                                                     552.238-81, Price                         Reductions. Use Alternate I for FSS with                         Transactional Data Reporting requirements. This                         alternate clause is used when vendors agree to include                         clause  552.238-80 Alternate I in                         the contract.                                                            (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. This                               alternate clause is used when vendors agree to                               include clause 552.238-80 Alternate I in the                               contract.                                                                                                           (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!®. 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.                                                            (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 GSAR clauses and GSAR provisions in                         paragraphs (d)(22)(i) through (xi) of this section 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)                           552.238-112 Definitions—Federal Supply Schedule Contracts., Definitions—Federal Supply Schedule Contracts.                                                            (37)                           552.238-113 Authorities Supporting Use of Federal Supply Schedule Contracts., Authorities Supporting Use of Federal Supply Schedule Contracts.                                                            (38)                                                    552.238-116, Option                         to Extend the Term of the FSS Contract. Use when                         appropriate.                                                            (39)                                                    552.238-117, Price                         Adjustment—Failure 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  552.238-80                         Industrial Funding Fee and Sales Reporting.                                                                             (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”.Subpart 538.70 - Use of Federal Supply Schedule Contracts by Eligible Non-Federal Entities    538.7000 Scope of subpart.       This subpart prescribes policies and procedures for implementing statutory, regulatory, and other authorities that authorize use of Federal Supply Schedule (FSS) contracts by eligible non-Federal entities.538.7001 Definitions       As used in this subpart—          *Eligible* means an entity that meets the requirements prescribed by statute, regulation, or other authority for purposes of being able to use FSS contracts. Information about GSA’s FSS eligibility process is available at   https://www.gsa.gov/eligibilitydeterminations.          *Non-Federal entity* means any state, local, 15 territorial, or tribal government, or any instrumentality thereof (including any local educational agency or institution of higher education); and any other non-Federal organization (e.g., a qualified nonprofit agency as defined in 40 U.S.C. 502(b)).          *Preparedness* means actions that may include, but are not limited to: planning, resourcing, organizing, equipping, training, and conducting exercises to improve, build and sustain the capabilities necessary to prevent, protect, mitigate, respond, and recover from a disaster.          *Recovery* means actions taken to assist communities affected by an incident to recover effectively. This includes, but is not limited to, actions to restore, redevelop, and revitalize the health, social, economic, natural, and environmental fabric of the community. Recovery may begin while response is still occurring.          *Response* means actions taken during a disaster, or in its aftermath, in order to save lives, protect property and the environment, and meet basic human needs. Response also includes the execution of emergency plans and actions to enable recovery from a disaster.538.7002           Authorities.       Various laws, regulations, and other authorities allow eligible non-Federal entities to use FSS contracts. This section identifies some of the common authorities allowing eligible non-Federal entities to use FSS contracts. See  https://www.gsa.gov/​eligibilitydeterminations for additional information about the authorities available.    538.7002-1 Cooperative purchasing program.       40 U.S.C. 502(c) allows State or local governments, as defined in   40 U.S.C. 502(c)(3), to purchase the types of supplies and services described in   40 U.S.C. 502(c). The supplies and services described in   40 U.S.C. 502(c) are limited to those available under the Information Technology Category, and the Security and Protection Category (or successor category(ies)). The GSA program that implements this authority is called the Cooperative Purchasing program.538.7002-2 Disaster purchasing program.       (a) 40 U.S.C. 502(d) allows State or local governments, as defined in 40. U.S.C. 502(c)(3), to purchase supplies or services that are to be used to facilitate—                                                         (1) Disaster preparedness or response;                                                            (2) Recovery from a major disaster declared by the President under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.); or                                                            (3)Recovery from terrorism, nuclear, biological, chemical, or radiological attack.                                                                             (b) The GSA program that implements this authority is called the Disaster Purchasing program.538.7002-3 Public health emergencies program.       42 U.S.C. 247d allows State or local governments, as defined in 40 U.S.C. 502(c)(3), to purchase supplies and services when expending Federal grant funds in response to a public health emergency declared by the Secretary of Health and Human Services under section 319 of the Public Health Services Act. The GSA program that implements this authority is called the Public Health Emergencies program.538.7002-4 Qualified nonprofit agencies for the blind or other severely disabled.       40 U.S.C. 502(b) allows qualified nonprofit agencies for the blind or other severely disabled, as defined by 41 U.S.C. 8501, that are providing a commodity or service to the Government under 41 U.S.C. chapter 85, to purchase supplies or services. Purchases under this authority must be used directly in making or providing to the Government a commodity or service that has been determined by the Committee for Purchase From People Who Are Blind or Severely Disabled under 41 U.S.C. 8503 to be suitable for procurement by the Government.538.7002-5 Qualified relief or disaster assistance organizations.       40 U.S.C. 502(e) allows the American National Red Cross and other qualified organizations, as defined in 40 U.S.C. 502(e)(3), to purchase supplies or services. Purchases under this authority by the American National Red Cross shall be used in furtherance of the purposes of the American National Red Cross set forth in 36 U.S.C. 300102. Purchases under this authority by other qualified organizations shall be used in furtherance of purposes determined to be appropriate to facilitate emergency preparedness and disaster relief and set forth in guidance by the Administrator of General Services, in consultation with the Administrator of the Federal Emergency Management Agency.538.7002-6 Indian Self-Determination and Education Assistance Act (ISDEAA).(a) 25 U.S.C. 5324(k) allows Tribal organizations, as defined in 25 U.S.C. 5304, that have an active ISDEAA contract, grant, or cooperative agreement to purchase supplies or services for the purposes of carrying out the ISDEAA contract, grant, or cooperative agreement.(b) 25 U.S.C. 5370 allows Indian Tribes, as defined in 25 U.S.C. 5304, that have an active ISDEAA compact or funding agreement to purchase supplies or services for the purposes of carrying the ISDEAA compact or funding agreement.(c)25 U.S.C. 5396 allows Indian Tribes, as defined in 25 U.S.C. 5304, that have an active ISDEAA compact or funding agreement to purchase supplies or services for the purposes of carrying out the ISDEAA compact or funding agreement.538.7002-7 Native American Housing Assistance and Self Determination Act (NAHASDA).       25 U.S.C 4111(j) allows Indian Tribes, as defined in 25 U.S.C. 4103, and tribally designated housing entities, as defined in 25 U.S.C. 4103, that have an active NAHASDA contract, grant, or cooperative agreement to purchase supplies and services for the purposes of carrying out the NAHASDA contract, grant, or cooperative agreement.538.7002-8 Native American Housing Assistance and Self Determination Act (NAHASDA).       25 U.S.C. 1660g(e) allows Urban Indian organizations, as defined in 25 U.S.C. 1603, that have an active contract or grant pursuant to 25 U.S.C. chapter 18 subchapter IV to purchase supplies and services for the purposes of carrying out the contract or grant.538.7002-9 Tribally controlled schools.       25 U.S.C. 2507(a)(6) allows tribally controlled schools, as defined under 25 U.S.C. 2511, that have an active grant pursuant to 25 U.S.C. chapter 27 to purchase supplies or services for the purposes of carrying out the grant.538.7002-10 1122 Program.       10 U.S.C. 281 allows States and units of local government, as defined in   10 U.S.C. 281, to purchase equipment suitable for counter-drug, homeland security, and emergency response activities through the Department of Defense. GSA, in coordination with the Secretary of Defense, produces and maintains a catalog in accordance with the procedures established by the Secretary of Defense. The catalog includes access to equipment available under FSS contracts. States and units of local government interested in using the 1122 program should contact their designated State point of contact.538.7003 Non-Federal entity requirements.Only non-Federal entities that are eligible may use FSS contracts. Use of FSS contracts by eligible non-Federal entities is voluntary. The following requirements apply to eligible non-Federal entities who decide to use FSS contracts:                (a)                     FSS contractors are not obligated to accept orders or enter into blanket purchase agreements; however, they are encouraged to do so.                             (b)                     Purchases cannot be made for personal use.                             (c)                     Purchases cannot be for resale, unless specifically authorized.                             (d)                     At a minimum, purchases shall comply with—                                      (1)FSS ordering guidance. Information about GSA's FSS contracts, including ordering guidance is available at https://www.gsa.gov/​schedules; and                                         (2)Any conditions of the underlying authority(ies) supporting the use of FSS contracts ( e.g.,40 U.S.C. 502(c) limits purchases to specific supplies and services available under the FSS program).                                                (e)                   An eligible non-Federal entity's eligibility cannot be transferred to a third party ( e.g., a subcontractor) or successor entity.538.7004 GSA responsibilities.       (a)Eligibility determination process. GSA may need to make a determination of eligibility to support a non-Federal entity's use of FSS contracts. See https://www.gsa.gov/​eligibilitydeterminations for information about eligibility.                                          (b) Oversight. To ensure proper use of and access to FSS contracts by eligible non-Federal entities, GSA may take any action within its authority as deemed necessary to deny, limit, or restrict use of FSS contracts, in whole or in part. Reasons may include, but are not limited to—                                                         (1)A change in an underlying authority;                                                            (2)A change in the terms and conditions of the FSS program or FSS contracts;                                                            (3)A failure by an eligible non-Federal entity to comply with the requirements of 538.7003; or                                                            (4)Use by an ineligible non-Federal entity.538.7005 Contract clause.Insert the clause at  552.238-114, Use of Federal Supply Schedule Contracts by Eligible Non-Federal Entities, in FSS solicitations and contracts.Subpart 538.71 - [Reserved]Subpart 538.72 - Order-level Materials 	  538.7200 Definitions. 		    As used in this subpart— 			      “Order-level materials” means supplies and/or services acquired in direct support of an individual task or delivery order placed against an authorized (see GSAR  538.7201(b)) Federal Supply Schedule (FSS) contract or FSS Blanket Purchase Agreement (BPA)), when the supplies and/or services are not known at the time of Schedule contract or FSS BPA award. The prices of order-level materials are not established in the FSS contract or FSS BPA. However, order-level materials are purchased under the authority of the FSS program, pursuant to   41 U.S.C. 152(3), and are not open market items, which are discussed in FAR 8.402(f).538.7201 General.       (a)  *Authority.* In accordance with GSA's authority under FAR 8.403(b), GSA has established special ordering procedures for the incorporation of order-level materials into the Federal Supply Schedule program.                                          (b)  *List.* The list of Federal Supply Schedule subcategories authorized to allow for order-level materials is available at   https://www.gsa.gov/olm.                                          (c)  *Changes.* HCAs may request changes to the list in paragraph (b) by submitting GSA Form 1649, Notification of Federal Supply Schedule Improvement, for approval by the Assistant Commissioner of the FAS Office of Policy and Compliance. Requests, submitted via GSA Form 1649 or otherwise, to add this authority to a Federal Supply Schedule must address the need for the authority, including why it is impractical to price the items at the contract level, and a description of the market research conducted (see FAR 10.002(e)). The FAS Office of Policy and Compliance should notify the SPE of changes to the list in paragraph (b) via email sent to   spe.request@gsa.gov.538.7202 Awarding Order-Level Materials in FSS contracts. 		    (a)  Federal Supply Schedules authorizing order-level materials must include a separate Special Item Number (SIN) with the following scope: 					           						             							              (1)  Order-level materials are supplies or services acquired in direct support of a contractor's offerings and which are unknown before a task or delivery order is placed against the FSS contract or FSS BPA); including, direct materials, subcontracts for supplies and incidental services for which there is not a labor category specified in the FSS contract, other direct costs, and indirect costs. Order-level materials are subject to a negotiated price ceiling that the contractor exceeds at its own risk. 						             						             							              (2)  Items awarded under ancillary supplies or other direct cost (ODC) SINs are not order-level materials. 						             					           				         				         					          (b)  The order-level materials SIN cannot be the only awarded SIN on a FSS contract or FSS BPA. 				         				         					          (c)  Price Pricing analysis for order-level materials is not conducted when awarding the Federal Supply Schedule FSS contract or FSS BPA; therefore, sections  538.270 and  538.271 do not apply to order-level materials.538.7203 Administering Order-Level Materials in FSS contracts.       (a)  Federal Supply Schedule Contracting Officers should consider requesting the assistance of members of the acquisition team responsible for contract administration functions (e.g., Administrative Contracting Officers, Industrial Operations Analysts) when evaluating the use of order-level materials at the FSS contract-level. Task or delivery orders including order-level materials placed against FSS contracts should be monitored to ensure special ordering procedures are being followed at GSAR  552.238-115(d).                                          (b)  Except as stated in  552.238-115(d)(10), all terms and conditions that otherwise apply to the FSS contract also apply to order-level materials. For example, order-level materials must comply with the Trade Agreements Act clauses, the Environmental Attributes clause, and the Industrial Funding Fee and Sales Reporting clauses.538.7204 Contract clauses. 		    (a)Use FAR clause 52.212-4 Alternate I in all Federal Supply Schedules authorized for the acquisition of order-level materials (see  538.7201(b)). Use the following language for the clause fill-in— 					           						             							              (1)Insert “Each order must list separately subcontracts for services excluded from the FSS Hourly Rates” in paragraph (e)(1)(iii)(D). 						             						             							              (2)Insert “Each order must list separately the elements of other direct costs for that order” in paragraph (i)(1)(ii)(D)*(1)*. 						             						             							              (3)Insert “Each order must list separately the fixed amount for the indirect costs and payment schedule; if no indirect costs are approved,” insert “None” in (i)(1)(ii)(D)*(2)*. 						             					           				         				         					          (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.
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