63892 Federal Register / Vol. 88, No. 179 / Monday, September 18, 2023 / Proposed Rules 

GENERAL SERVICES 

ADMINISTRATION 

48 CFR Parts 538 and 552 

[GSAR Case 2020–G511; Docket No. 2023– 

0019; Sequence No. 1] 

RIN 3090–AK21 

General Services Administration 

Acquisition Regulation; Updated 

Guidance for Non-Federal Entities 

Access to Federal Supply Schedules 

AGENCY: Office of Acquisition Policy, 

General Services Administration (GSA). 

ACTION: Proposed rule. 

SUMMARY: GSA is proposing to amend 

the General Services Administration 

Acquisition Regulation (GSAR) to 

update and clarify the requirements for 

use of Federal Supply Schedule (FSS) 

contracts by eligible non-Federal 

entities, such as State and local 

governments. 

DATES: Interested parties should submit 

written comments to the Regulatory 

Secretariat Division at the address 

shown below on or before November 17, 

2023 to be considered in the formation 

of the final rule. 

ADDRESSES: Submit comments in 

response to GSAR Case 2020–G511 to 

https://www.regulations.gov via the 

Federal eRulemaking portal by 

searching for ‘‘GSAR Case 2020–G511’’. 

Select the link ‘‘Comment Now’’ that 

corresponds with GSAR Case 2020– 

G511. Follow the instructions provided 

at the ‘‘Comment Now’’ screen. Please 

include your name, company name (if 

any), and ‘‘GSAR Case 2020–G511’’ 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 2020–G511, 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: For 

clarification of content, contact Mr. 

Thomas O’Linn, Procurement Analyst, 

at gsarpolicy@gsa.gov or 202–445–0390. 

For information pertaining to status or 

publication schedules, contact the 

Regulatory Secretariat Division at 

GSARegSec@gsa.gov or 202–501–4755. 

Please cite GSAR Case 2020–G511. 

SUPPLEMENTARY INFORMATION: 

I. Background 

GSA conducts routine reviews of its 

acquisition regulations. Routine review 

of the GSAR, as well as feedback from 

GSA’s operational offices, prompted this 

change. The review indicated a need to 

update and clarify GSAR subpart 

538.70, Purchasing by Non-Federal 

Entities. 

GSAR subpart 538.70 prescribes the 

policies and procedures that implement 

statutory, regulatory, and other 

provisions that authorize eligible nonFederal entities (e.g., State or local 

governments as defined in 40 U.S.C. 

502(c)(3)) use of Federal Supply 

Schedule (FSS) contracts. 

The GSA Schedule, also known as 

FSS, and Multiple Award Schedule 

(MAS), is a long-term governmentwide 

contract with commercial companies 

that provide access to millions of 

commercial products and services at fair 

and reasonable prices to the Federal 

Government and other authorized 

ordering activities. 

This change will update and clarify 

GSAR subpart 538.70, which supports 

use of FSS contracts by eligible nonFederal entities. This subpart is being 

revised to make administrative changes 

due to changes in some of the 

underlying authorities supporting use of 

FSS contracts by eligible non-Federal 

entities. This rule also updates and 

clarifies existing requirements 

supporting use of FSS contracts by 

eligible non-Federal entities, adds 

additional key authorities that support 

such use, and makes additional 

technical corrections to enhance clarity 

of existing requirements. 

II. Discussion and Analysis 

This rule proposes to revise GSAR 

subpart 538.70 in its entirety in an effort 

to: (1) update and clarify existing 

requirements supporting use of FSS 

contracts by eligible non-Federal 

entities; (2) clarify GSAR clause 

requirements (e.g., remove redundant 

information); (3) and reflect changes 

based on some of the underlying 

authorities that provide use of FSS 

contracts by eligible non-Federal 

entities; (4) add additional key 

authorities that support such use. A 

summary of these revisions is as 

follows: 

A. Subpart 538.70—Purchasing by 

Non-Federal Entities, is being renamed 

as Subpart 538.70—Use of GSA’s 

Federal Supply Schedule Contracts by 

Eligible Non-Federal Entities. The 

purpose for renaming this subpart is to 

provide clarity that this subpart deals 

only with Federal Supply Schedule 

contracts. The intent is to resolve any 

confusion around non-Federal entity 

access to other GSA programs and 

contracts. 

B. Section 538.7000 Scope of subpart, 

is revised in its entirety to clarify the 

scope of this subpart. The change is 

intended to resolve confusion around 

the scope of this subpart and its relation 

to other GSA programs and contracts. 

C. Section 538.7001 Definitions, is 

revised in its entirety to: add definitions 

for purposes of clarity, revise existing 

definitions for purposes of clarity or 

currency, and remove definitions 

determined to be no longer necessary. 

For example, the existing definitions for 

‘‘preparedness’’, ‘‘recovery’’, and 

‘‘response’’ are being revised to reflect 

updates to FEMA’s National Response 

Framework, which addresses disasters 

and other incidents. Definitions for 

‘‘non-Federal entity’’ and ‘‘eligible’’, are 

also being added. The definition for 

‘‘non-Federal entity’’ provides needed 

clarity surrounding the use of this term 

within the FSS program. The definition 

for ‘‘eligible’’ provides a needed 

qualifier for understanding the 

difference between a non-Federal entity 

that is able to use FSS contracts and one 

that is not. The definitions for ‘‘relief’’, 

‘‘ordering activity’’, and ‘‘state and local 

government entities’’ are being removed 

as they have been determined to be no 

longer necessary. 

D. Section 538.7002 General, is being 

renamed as 538.7002 Authorities, and 

revised in its entirety. The revision: (1) 

renames the section to accurately reflect 

the content of the section, which is to 

provide a list of the authorities 

supporting use of FSS contracts by 

eligible non-Federal entities; (2) 

identifies and clarifies a number of 

existing authorities available to eligible 

non-Federal entities; (3) identifies 

additional authorities not currently 

identified in this section (e.g., the 

addition of the Indian SelfDetermination and Education 

Assistance Act (ISDEAA) authority); (4) 

provides for the inclusion of additional 

future authorities that may impact the 

eligibility of non-Federal entities (i.e., 

currently 538.7002 provides only a 

limited enumerated list of authorities); 

and (5) provides a hyperlink to a GSA 

website that provides additional 

information about the authorities 

supporting the use of FSS contracts by 

eligible non-Federal entities. 

E. Section 538.7003 Policy, is being 

renamed as 538.7003 Non-Federal entity 

requirements, and revised in its entirety. 

The revision: (1) removes the ability to 

deviate from various FAR provisions 


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1The hourly rate for GS–12 is $61.29 ($44.98 as 

a GS–12/step 5 salary OPM 2023 pay scale Rest of 

US, with a 36.25% ($16.31) fringe factor pursuant 

to OMB memorandum M–08–13). 

and clauses; (2) provides clarity on the 

use of FSS contracts by eligible nonFederal entities; and (3) adds a 

hyperlink to GSA’s website that 

provides GSA FSS ordering guidance to 

eligible non-Federal entities. 

F. Section 538.7004 Solicitation 

provisions and contract clauses, is being 

renamed as 538.7004 GSA 

responsibilities, and revised in its 

entirety. The revision describes GSA’s 

responsibilities concerning the use of 

FSS contracts by eligible non-Federal 

entities. These responsibilities reflect 

existing requirements, thus the intent of 

moving them to the GSAR is to enhance 

awareness of these requirements. 

G. Section 538.7005 Contract clause, 

is a new section being added to the 

subpart. This new section provides for 

the prescription of GSAR clause 

552.238–114, which is being revised 

under this proposed rule. 

H. GSAR clause 552.238–105, 

Deliveries Beyond the Contractual 

Period—Placing of Orders, is being 

revised. The revision updates the 

citation to GSAR clause 552.238–113, 

which is being revised and renamed 

under this proposed rule. The revision 

changes the citation from ‘‘Clause 

552.238–113, Scope of Contract (Eligible 

Ordering Activities)’’ to ‘‘the GSAR 

clause at 552.238–113, Authorities 

Supporting Use of Federal Supply 

Schedule Contracts.’’ 

I. GSAR Clause 552.238–112, 

Definitions (Federal Supply Schedules) 

Non-Federal Entity, is being revised, 

and renamed as 552.238–112, 

Definitions—Federal Supply Schedule 

Contracts. The revision provides for a 

definition for the word ‘eligible’ and an 

updated definition for the term 

‘ordering activity.’ The definition for 

‘‘eligible’’ provides a needed qualifier 

for understanding the difference 

between a non-Federal entity that is 

authorized to use FSS contracts and one 

that is not. The update to the definition 

for the term ‘ordering activity’ is needed 

in order to capture the ability for 

ordering activities to establish blanket 

purchase agreements under FSS 

contracts. 

J. GSAR clause 552.238–113, Scope of 

Contract (Eligible Ordering Activities), 

is being revised, and renamed 552.238– 

113, Authorities Supporting Use of 

Federal Supply Schedule Contracts. The 

revision: (1) renames the clause so as to 

clarify this clause applies to FSS 

contracts; (2) removes unnecessary or 

redundant information that is contained 

elsewhere in the FSS solicitation and 

resultant contracts; (3) streamlines the 

clause to focus solely on the authorities 

that support use of FSS contracts; and 

(4) provides an updated list of the 

primary authorities supporting use of 

FSS contracts. 

K. GSAR clause 552.238–114, Use of 

Federal Supply Schedule Contracts by 

Non-Federal Entities, is being revised 

and renamed 552.238–114, Use of 

Federal Supply Schedule Contracts by 

Eligible Non-Federal Entities. The 

revision: (1) renames the clause to add 

the word ‘‘eligible’’ to the clause title; 

(2) captures the ability for eligible nonfederal entities to establish blanket 

purchase agreements under FSS 

contracts (which is currently not 

addressed in the existing clause); and 

(3) clarifies the requirements that apply 

to use of FSS contracts by eligible nonFederal entities. 

L. Lastly, section 538.273, FSS 

solicitation provisions and contract 

clauses, is being revised to provide for 

the prescription of GSAR clauses 

552.238–112 and 552.238–113, which 

are being revised and renamed under 

this proposed rule. Section 538.273 is 

appropriate because this is where FSS 

GSAR provisions and clauses are 

located. 

III. Expected Impact of the Rule 

GSA believes that these changes 

benefit the FSS program as a whole. For 

example, these changes provide 

visibility into the resources and 

authorities available to eligible nonFederal entities who may be interested 

in using FSS contracts. Additionally, 

these changes clarify the requirements 

for FSS contractors interested in doing 

business with eligible non-Federal 

entities under their FSS contract. These 

changes do not alter the manner in 

which the FSS contractors conduct 

business, or the manner in which 

eligible non-Federal entities may access 

and use FSS contracts. The rule merely 

updates and clarifies requirements 

currently in use in the FSS program, 

such as updating and clarifying existing 

statutory, regulatory, and other 

authorities that enable eligible nonFederal entities use of FSS contracts. 

GSA assumes these changes will have a 

positive impact on the FSS program as 

a whole, including FSS contractors and 

eligible non-Federal entities. 

The qualitative anticipated benefits 

include, but are not limited to, removal 

of outdated and redundant information; 

clarification of the requirements 

supporting use of FSS contracts by 

eligible non-Federal entities; 

clarification of the authorities providing 

use of FSS contracts by eligible nonFederal entities (e.g., adding the 

authority provided by the Indian SelfDetermination and Education 

Assistance Act that allows tribal 

organizations and Indian tribes to use 

FSS contracts under certain conditions); 

identification of some of the programs 

created for purpose of implementing 

some of these authorities (e.g., GSA’s 

Disaster Purchasing program which 

implements 40 U.S.C. 502(d)); 

clarification on who is and who is not 

considered eligible to use FSS contracts 

(i.e., providing a definition for ‘eligible’ 

and ‘non-Federal entity’); and inclusion 

of hyperlinks to resources that provide 

additional information about eligibility 

and use of FSS contracts (e.g., https:// 

www.gsa.gov/eligibilitydeterminations 

includes a list that FSS contractors can 

use to verify an entity’s eligibility). 

Due to these benefits, GSA estimates 

the following annual reduction in 

burden due to the proposed 

clarifications: GSA estimates it takes 3 

hours for FSS contractors to familiarize 

(read and understand the applicable 

GSAR requirements of this proposed 

rule) themselves with the regulations. 

Therefore, for FSS contractors: 

Prior to the revisions: the current 

estimated total cost is 3 hours * $61.29 1

(GS–12 Step 5 base pay plus ‘‘Rest of US 

Locality Pay’’ plus ‘‘Fringe’’) * 13,000 

approximate number of current FSS 

contractors = $2,390,310.00. 

After the revisions: the estimated total 

cost is 2.5 hours * $61.29 (GS–12 Step 

5 base pay plus ‘‘Rest of US Locality 

Pay’’ plus ‘‘Fringe’’) * 13,000 

approximate number of current FSS 

contractors = $2,191,117.50. 

Resulting in a reduction in burden of 

$199,192.50. 

IV. Executive Orders 12866, 13563 and 

14094 

Executive Order (E.O.) 12866 

(Regulatory Planning and Review) 

directs 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 (Improving 

Regulation and Regulatory Review) 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. E.O. 14094 

(Modernizing Regulatory Review) 

supplements and reaffirms the 

principles, structures, and definitions 

governing contemporary regulatory 

review established in E.O. 12866 and 

E.O. 13563. OIRA has determined that 


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this rule is not a significant regulatory 

action, and, therefore, is not subject to 

review under section 6(b) of E.O. 12866, 

Regulatory Planning and Review, dated 

September 30, 1993. 

V. Regulatory Flexibility Act 

GSA does not expect this proposed 

rule to have a significant economic 

impact on a substantial number of small 

entities within the meaning of the 

Regulatory Flexibility Act, 5 U.S.C. 601, 

et seq., because this rule is to: (1) update 

and clarify existing requirements 

supporting use of FSS contracts by 

eligible non-Federal entities; (2) clarify 

GSAR clause requirements (e.g., rename 

clauses, remove redundant or 

duplicative information); (3) reflect 

changes based on some of the 

underlying authorities that provide 

eligible non-Federal entities use of FSS 

contracts; (4) add additional authorities 

that support such use; and (5) include 

hyperlinks to resources that provide 

information about eligibility and use of 

FSS contracts. 

The purpose of the changed text 

remains the same, and therefore any 

burden would have been identified 

previously. Additionally, participation 

by both FSS contractors and eligible 

non-Federal entities remains voluntary. 

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 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. GSA 

invites comments from small business 

concerns and other interested parties on 

the expected impact of this rule on 

small entities. 

GSA will also consider comments 

from small entities concerning the 

existing regulations in subparts affected 

by the 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 2020–G511), in 

correspondence. 

The analysis is summarized as 

follows: 

The objective of the rule is to revise GSAR 

subpart 538.70 in its entirety in an effort to: 

(1) update and clarify existing requirements 

supporting use of FSS contracts by eligible 

non-Federal entities; (2) clarify GSAR clause 

requirements (e.g., rename clauses, remove 

redundant or duplicative information); (3) 

reflect changes based on some of the 

underlying authorities that provide eligible 

non-Federal entities use of FSS contracts; (4) 

add additional authorities that support such 

use; and (5) include hyperlinks to resources 

that provide information about eligibility and 

use of FSS contracts. 

Title 40 of the United States Code (U.S.C.) 

Section 121 authorizes GSA to issue 

regulations, including the GSAR, to control 

the relationship between GSA and 

contractors. In addition, 41 U.S.C. 152 

provides GSA authority over the FSS 

program. 

The rule applies to both large and small 

businesses, which are awarded FSS contracts 

and decide to do business with eligible nonFederal entities who decide to use FSS 

contracts (i.e., participation by all parties is 

voluntary). 

Information obtained from the FSS 

program was used as the basis for estimating 

the number of FSS contractors that the rule 

may apply. For fiscal year 2022, 

approximately 12,000 GSA FSS contractors 

reported over $780 million in sales to eligible 

non-Federal entities. Of the number of FSS 

contractors that did business with eligible 

non-Federal entities approximately 10,700 

(89%) were small business FSS contractors. 

It is anticipated that these changes will 

increase awareness of the authorities that 

allow eligible non-Federal entities use of FSS 

contracts as well as the resources available. 

It is anticipated that these changes will 

clarify the requirements for FSS contractors 

choosing to do business with eligible nonFederal entities under their FSS contracts. 

Altogether, GSA assumes these changes will 

have a positive impact on the FSS program 

as a whole, including FSS contractors and 

eligible non-Federal entities. 

The rule does not implement new or 

change reporting, recordkeeping, or other 

compliance requirements for FSS contracts. 

The rule merely updates and clarifies 

existing FSS requirements, such as updating 

and clarifying existing statutory, regulatory, 

and other authorities that enable eligible nonFederal entities use of FSS contracts. This 

rule does not implement new or changed 

requirements. 

The 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 and 

procedures prescribed in existing FSS 

clauses are already being followed. The rule 

merely updates and clarifies existing 

statutory, regulatory, and other authorities 

related to the use of FSS contracts by nonFederal entities. 

VI. 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 538 and 

552 

Government procurement. 

Jeffrey A. Koses, 

Senior Procurement Executive, Office of 

Acquisition Policy, Office of Governmentwide Policy, General Services Administration. 

Therefore, GSA proposes to amend 48 

CFR parts 538 and 552 as set forth 

below: 

■ 1. The authority citation for 48 CFR 

parts 538 and 552 continues to read as 

follows: 

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

PART 538—FEDERAL SUPPLY 

SCHEDULE CONTRACTING 

■ 2. Amend section 538.273 by— 

■ a. Redesignating paragraph (d)(36) as 

paragraph (d)(38); and 

■ b. Adding new paragraph (d)(36) and 

paragraph (d)(37) to read as follows: 

538.273 FSS solicitation provisions and 

contract clauses. 

* * * * * 

(d) * * * 

(36) 552.238–112, Definitions— 

Federal Supply Schedule Contracts. 

(37) 552.238–113, Authorities 

Supporting Use of Federal Supply 

Schedule Contracts. 

* * * * * 

■ 3. Revise subpart 538.70 to read as 

follows: 

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 Urban Indian organizations. 

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 538.70—Use of Federal Supply 

Schedule Contracts by Eligible NonFederal Entities 

538.7000 Scope of subpart. 

This subpart prescribes policies and 

procedures for implementing statutory, 


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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, 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 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 nonFederal entities to use FSS contracts. 

See https://www.gsa.gov/eligibility

determinations 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 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 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 Urban Indian organizations. 

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 


lotter on DSK11XQN23PROD with PROPOSALS1
63896 Federal Register / Vol. 88, No. 179 / Monday, September 18, 2023 / Proposed Rules 

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 nonFederal 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/eligibility

determinations 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 nonFederal 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. 

PART 552—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 4. Amend section 552.238–105 by 

revising the date of the clause and the 

first sentence of the paragraph text to 

read as follows: 

552.238–105 Deliveries Beyond the 

Contractual Period—Placing of Orders. 

* * * * * 

Deliveries Beyond the Contractual Period— 

Placing of Orders (Date) 

In accordance with the GSAR clause at 

552.238–113, Authorities Supporting Use of 

Federal Supply Schedule Contracts, this 

contract covers all requirements that may be 

ordered, as distinguished from delivered 

during the contract term. * * * 

■ 5. Revise sections 552.238–112 

through 552.238–114 to read as follows: 

552.238–112 Definitions—Federal Supply 

Schedule Contracts. 

As prescribed in 538.273(d) insert the 

following clause: 

Definitions—Federal Supply Schedule 

Contracts (Date) 

As used in this contract, 

Eligible means an entity that meets the 

requirements prescribed by statute, 

regulation, or other authority for purposes of 

being able to use Federal Supply Schedule 

(FSS) contracts. Information about FSS 

eligibility is available at https://www.gsa.gov/ 

eligibilitydeterminations. 

Ordering activity (also called ‘‘ordering 

agency’’ and ‘‘ordering office’’) means an 

entity that is eligible to place orders or 

establish blanket purchase agreements (BPA) 

under this contract. 

(End of clause) 

552.238–113 Authorities Supporting Use 

of Federal Supply Schedule Contracts. 

As prescribed in 538.273(d), insert the 

following clause: 

Authorities Supporting Use of Federal 

Supply Schedule Contracts (Date) 

(a) Ordering activities are able to use 

Federal Supply Schedule (FSS) contracts 

based upon a number of statutes, regulations, 

and other authorities. Authorities allowing 

ordering activities use of FSS contracts 

include, but are not limited to: 

(1) 25 U.S.C. 1660g(e), which provides for 

the use by urban Indian organizations, as 

defined in 25 U.S.C. 1603, for the purposes 

of carrying out a contract or grant pursuant 

to 25 U.S.C. chapter 18 subchapter IV. 

(2) 25 U.S.C. 2507, which provides for the 

use by tribally controlled schools, as defined 

in 25 U.S.C. 2511, for the purposes of 

carrying out a grant pursuant to 25 U.S.C. 

chapter 27 (known as the Tribally Controlled 

Schools Act). 

(3) 25 U.S.C. 4111, which provides for the 

use by Indian tribes, as defined in 25 U.S.C. 

4103, and tribally designated housing 

entities, as defined in 25 U.S.C. 4103, for the 

purposes of carrying out a contract, grant, or 

cooperative agreement pursuant to 25 U.S.C. 

chapter 43 (known as the Native American 

Housing Assistance and Self Determination 

Act (NAHASDA)). 

(4) 25 U.S.C. 5324, which provides for the 

use by tribal organizations, as defined in 25 

U.S.C. 5304, for the purposes of carrying out 

a contract, grant, or cooperative agreement 

pursuant to 25 U.S.C. chapter 46 (known as 

the Indian Self-Determination and Education 

Assistance Act (ISDEAA)). 

(5) 25 U.S.C. 5370 and 25 U.S.C. 5396, 

which provides for the use by Indian tribes, 

as defined in 25 U.S.C. 5304, for the purpose 

of carrying out a compact or funding 

agreement pursuant to 25 U.S.C. chapter 46 

(known as ISDEAA). 

(6) 40 U.S.C. 113(d), which provides for the 

use by the Senate, the House of 

Representatives, and the Architect of the 

Capitol (including any building, activity, or 

function under the direction of the Architect 

of the Capitol). 

(7) 40 U.S.C. 501, which provides for the 

use by executive agencies as defined in 5 

U.S.C. 105. 

(8) 40 U.S.C. 502(a), which provides for the 

use by Federal agencies as defined in 40 

U.S.C. 102, the District of Columbia, and 

mixed-ownership Government corporations 

as defined in 31 U.S.C. 9101. 

(9) 40 U.S.C. 502(b), which provides for the 

use by qualified nonprofit agencies for other 

severely disabled, as defined in 41 U.S.C. 

8501(6), and qualified nonprofit agencies for 

the blind, as defined in 41 U.S.C. 8501(7), for 

the purposes of 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. 

(10) 40 U.S.C. 502(c), which provides for 

the use by State or local governments, as 

defined in 40 U.S.C. 502(c)(3)(A), for the 

purpose of purchasing the types of supplies 

and services described in 40 U.S.C. 502(c). 

The GSA program implementing this 

authority is the Cooperative Purchasing 

program. 

(i) The types of supplies and services 

described in 40 U.S.C. 502(c) are limited to 

those available in the Information 

Technology Category and the Security and 

Protection Category (or any successor 

categories). 

(11) 40 U.S.C. 502(d), which provides for 

the use by State or local governments, as 

defined in 40 U.S.C. 502(c)(3)(A), for the 

purposes of facilitating disaster preparedness 

or response, facilitating 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 facilitating recovery from 

terrorism, nuclear, biological, chemical, or 

radiological attack. The GSA program 

implementing this authority is the Disaster 

Purchasing program. 


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Federal Register / Vol. 88, No. 179 / Monday, September 18, 2023 / Proposed Rules 63897 

(12) 40 U.S.C. 502(e), which provides for 

the use by the American National Red Cross 

and other qualified organizations, as defined 

in 40 U.S.C. 502(e)(3). 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. 

(13) 42 U.S.C. 247d, which provides for the 

use by State or local governments, as defined 

in 40 U.S.C. 502(c)(3)(A), when a public 

health emergency has been declared by the 

Secretary of Health and Human Services 

under section 319 of the Public Health 

Services Act. The GSA program 

implementing this authority is the Public 

Health Emergencies program. 

(14) FAR subpart 51.1, which provides for 

the use by contractors, including 

subcontractors, when such use is authorized 

pursuant to FAR subpart 51.1. 

(End of clause) 

552.238–114 Use of Federal Supply 

Schedule Contracts by Eligible Non-Federal 

Entities. 

As prescribed in 538.7005, insert the 

following clause: 

Use of Federal Supply Schedule Contracts by 

Eligible Non-Federal Entities (Date) 

(a) Definition. 

Non-Federal entity, as used in this clause, 

means any state, local, 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)). 

(b) Responsibilities. Eligible non-Federal 

entities are responsible for complying 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 FSS contracts). 

(c) Acceptance. (1) The Contractor is 

encouraged, but not obligated, to accept 

orders from eligible non-Federal entities 

under this contract. The Contractor may, 

within 5 business days of receipt of an order, 

reject an order from an eligible non-Federal 

entity for any reason. However, purchase 

card orders must be rejected within 24 hours 

of receipt of the order. Failure to reject an 

order within these timeframes shall 

constitute acceptance. 

(2) The Contractor is encouraged, but not 

obligated, to enter into blanket purchase 

agreements (BPAs) with eligible non-Federal 

entities under the terms of this contract. The 

Contractor should respond to any requests to 

enter into a BPA within 5 business days of 

receipt of the request. 

(d) Conditions of acceptance. If the 

Contractor accepts an order from or enters 

into a BPA with an eligible non-Federal 

entity under this contract, the following 

conditions apply: 

(1) For orders, a separate contract is formed 

between the Contractor and the eligible nonFederal entity (herein ‘‘the parties’’). For 

BPAs, a separate agreement is formed 

between the parties. 

(2) The resultant order or BPA shall 

incorporate by reference all the terms and 

conditions of this contract except for: 

(i) FAR clause 52.233–1, Disputes, and 

(ii) Paragraphs (d) Disputes, (h) Patent 

indemnity, and (r) Compliance with laws 

unique to Government contracts, of GSAR 

clause 552.212–4, Contract Terms and 

Conditions—Commercial Products and 

Commercial Services. 

(3) The U.S. Government is not liable for 

the performance or nonperformance of any 

order or BPA entered into under this contract 

by the parties. Disputes which cannot be 

resolved by the parties may be litigated in 

any State or Federal court with jurisdiction 

over the parties, applying Federal 

procurement law, including statutes, 

regulations, and case law, and, if pertinent, 

the Uniform Commercial Code. To the extent 

authorized by law, the parties are encouraged 

to resolve disputes through alternative 

dispute resolution. 

(4) Neither party will look to, primarily or 

in any secondary capacity, or file any claim 

against the U.S. Government or any of its 

agencies with respect to any failure of 

performance by the other party. 

(e) Additional terms and conditions. Terms 

and conditions required by statute, 

ordinance, regulation, or as otherwise 

required by an eligible non-Federal entity 

may be made a part of an order or a BPA to 

the extent that these terms and conditions do 

not conflict with the terms and conditions of 

this contract. The Contractor should review 

any such additional terms and conditions 

prior to accepting an order or entering into 

a BPA with an eligible non-Federal entity. 

(f) Payment. (1) The Contractor is 

responsible for obtaining all payments due to 

the Contractor from the eligible non-Federal 

entity under the terms and conditions of the 

order or the BPA entered into under this 

contract, without recourse to the U.S. 

Government or any of its agencies that 

awarded this contract or administer this 

contract. 

(2) If an eligible non-Federal entity is 

subject to a State prompt payment law, the 

terms and conditions of the applicable State 

law apply to the orders placed under this 

contract by such entities. If an eligible nonFederal entity is not subject to a State prompt 

payment law, the terms and conditions of 

paragraph (i) of the GSAR clause at 552.212– 

4, apply to such entities in the same manner 

as to Federal entities. 

(g) Fee and sales reporting. The 

requirements of the GSAR clause at 552.238– 

80, Industrial Funding Fee and Sales 

Reporting, apply to any sales to eligible nonFederal entities under this contract. 

(End of clause) 

[FR Doc. 2023–20098 Filed 9–15–23; 8:45 am] 

BILLING CODE 6820–61–P 

SURFACE TRANSPORTATION BOARD 

49 CFR Part 1145 

[Docket No. EP 711 (Sub-No. 2)] 

Reciprocal Switching for Inadequate 

Service 

AGENCY: Surface Transportation Board. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: This decision proposes, in a 

new subdocket, a new set of regulations 

that would provide for the prescription 

of reciprocal switching agreements to 

address inadequate rail service, as 

determined using objective standards 

based on a carrier’s original estimated 

time of arrival, transit time, and firstmile and last-mile service. To help 

implement the new regulations, the 

Surface Transportation Board (Board or 

STB) proposes to require Class I carriers 

to submit certain data, which would be 

publicly accessible and generalized; and 

to adopt a new requirement that, upon 

written request by a customer, a rail 

carrier must provide to that customer 

individualized, machine-readable 

service data. 

DATES: Comments are due by October 

23, 2023. Replies are due by November 

21, 2023. 

ADDRESSES: All filings must be 

submitted to the Surface Transportation 

Board either via e-filing on the Board’s 

website or in writing addressed to 395 

E Street SW, Washington, DC 20423– 

0001. Filings will be posted to the 

Board’s website and need not be served 

on other commenters or any other party 

to the proceedings. 

FOR FURTHER INFORMATION CONTACT: 

Valerie Quinn at (202) 740–5567. If you 

require accommodation under the 

Americans with Disabilities Act, please 

call (202) 245–0245. 

SUPPLEMENTARY INFORMATION: 

Overview. In 2016, the Board issued a 

notice of proposed rulemaking in 

Reciprocal Switching (2016 NPRM), EP 

711 (Sub-No. 1) et al. (STB served July 

27, 2016), under which the agency 

would exercise its statutory authority to 

require rail carriers to enter into 

reciprocal switching agreements under 

49 U.S.C. 11102(c). Due to 

developments in the freight rail industry 

since the Board’s 2016 notice, including 

critical and ongoing service problems, 

the Board has decided to focus, at this 

time, its reciprocal switching reforms on 

more specific and objective remedies for 


lotter on DSK11XQN23PROD with PROPOSALS1