Federal Register / Vol. 80, No. 54 / Friday, March 20, 2015 / Notices 15011 

measure and monitor systemic risk and 

counterparty exposure, as well as 

improve operational efficiencies. A 

single global system would help support 

the shared objective of a more stable 

financial system. 

While the Federal Reserve has 

considered retrieving LEI’s from the 

issuers directly, this method has been 

deemed as ineffective since the 

associated structure data is very limited 

at this time. Reconciling the entity’s LEI 

with their current structure data would 

be difficult and most likely result in 

inaccuracies given that so many 

institutions have similar attributes, such 

as entity names. Therefore, obtaining 

the LEI directly from the reporting 

entity is the most reliable source to 

accurately match an entity with the 

correct LEI. 

The Federal Reserve proposes to add 

the LEI to the FR Y–6 and FR Y–7 

organizational chart effective with fiscal 

year ends beginning June 30, 2015. 

Submission of existing LEI information 

would follow the normal FR Y–6 and FR 

Y–7 submission deadlines. The Federal 

Reserve proposes a one-time 

information collection to populate 

existing LEI data for all FR Y–10 

reportable entities (excluding branches), 

as of June 30, 2015. Respondents would 

submit this information no later than 

September 30, 2015. LEIs issued after 

June 30, 2015, should be reported on the 

appropriate FR Y–10 schedules. For all 

LEIs assigned between June 30, 2015, 

and September 30, 2015, information 

must be received at the appropriate 

Federal Reserve Bank by October 30, 

2015. The Federal Reserve would 

provide a means for institutions to 

provide their one-time submission data 

in a format easier than individual FR Y– 

10 submissions. 

Question: Comments are invited on 

whether collecting existing LEI 

information only from entities that are 

reportable on the FR Y–10 would be 

sufficient rather than collecting LEI 

information from all entities reportable 

on the FR Y–6 and FR Y–7 

organizational charts. 

Board of Governors of the Federal Reserve 

System, March 16, 2015. 

Robert deV. Frierson, 

Secretary of the Board. 

[FR Doc. 2015–06363 Filed 3–19–15; 8:45 am] 

BILLING CODE 6210–01–P 

GENERAL SERVICES 

ADMINISTRATION 

[NOTICE–MVA–2015–01; Docket No. 2015– 

0002; Sequence No. 4] 

Notice of a Class Deviation To Address 

Commercial Supplier Agreement 

Terms Inconsistent With Federal Law 

AGENCY: Office of Government-wide 

Policy, General Services 

Administration. 

ACTION: Request for Information (RFI). 

SUMMARY: The Office of Acquisition 

Policy is requesting feedback on a 

proposed class deviation to the Federal 

Acquisition Regulation (FAR) and the 

General Services Acquisition Regulation 

(GSAR) to address common Commercial 

Supplier Agreement terms that are 

inconsistent with or create ambiguity 

with Federal law. This class deviation 

will go into effect forty-five (45) days 

from the date of publication of this RFI 

in the Federal Register, after 

considering comments received. 

DATES: Comments: Interested parties 

should submit written comments to the 

Regulatory Secretariat Division at one of 

the addresses shown below on or before 

April 20, 2015. 

ADDRESSES: Submit comments in 

response to Notice—MVA–2015–01 by 

any of the following methods: 

• Regulations.gov: http://

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

searching for ‘‘Notice—MVA–2015–01’’. 

Select the link ‘‘Comment Now’’ that 

corresponds with ‘‘Notice—MVA–2015– 

01’’ and follow the instructions 

provided on the screen. Please include 

your name, company name (if any), and 

‘‘Notice—MVA–2015–01’’ on your 

attached document. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(MVCB), ATTN: Ms. Flowers/Notice— 

MVA–2015–01, 1800 F Street NW., 2nd 

Floor, Washington, DC 20405–0001. 

Instructions: Please submit comments 

only and cite Notice—MVA–2015–01 in 

all correspondence related to this case. 

All comments received will be posted 

without change to http://

www.regulations.gov, including any 

personal and/or business confidential 

information provided. 

FOR FURTHER INFORMATION CONTACT: Mr. 

James Tsujimoto, Program Analyst, 

Acquisition Policy Division, at 

telephone 202–208–3585 or email 

james.tsujimoto@gsa.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

GSA defines Commercial Supplier 

Agreements as terms and conditions 

that are customarily offered to the 

public by vendors of supplies or 

services that meet the definition of 

‘‘commercial item’’ and are intended to 

create a binding legal obligation on the 

end user. Commercial Supplier 

Agreements are particularly common in 

information technology acquisitions, 

including acquisitions of commercial 

computer software and commercial 

technical data, but they may apply to 

any supply or service. 

Customarily, commercial item 

supplies and services are offered to the 

public under standard agreements that 

may take a variety of forms, including 

license agreements, terms of service 

(TOS), terms of sale or purchase, and 

similar agreements. These customary, 

standard Commercial Supplier 

Agreements typically contain terms and 

conditions that make sense when the 

purchaser is a private party but are 

inappropriate when the purchaser is the 

Federal Government. 

The existence of Federallyincompatible terms in contractors’ 

standard Commercial Supplier 

Agreements has long been recognized in 

FAR 27.405–3(b), which is limited to 

the acquisition of commercial computer 

software. This clause advises 

contracting officers to exercise caution 

when accepting a contractor’s terms and 

conditions. However, the use of 

Commercial Supplier Agreements is not 

limited to information technology 

acquisitions; Commercial Supplier 

Agreements have become ubiquitous in 

a broad variety of contexts, from travel 

to telecommunications to financial 

services to building maintenance 

systems, including purchases below the 

simplified acquisition threshold. 

Discrepancies between Commercial 

Supplier Agreements and Federal law or 

the Government’s needs create recurrent 

points of inconsistency. Below are 

several examples of incompatible 

clauses that are commonly found in 

Commercial Supplier Agreements: 

• Jurisdiction or venue clauses may 

require that disputes be resolved in a 

particular state or Federal court. Such 

clauses conflict with the sovereign 

immunity of the US Government and 

cannot apply to litigation where the US 

Government is a defendant because 

those disputes must be heard either in 

US District Court (28 U.S.C. 1346) or the 

US Court of Federal Claims (28 U.S.C. 

1491). 

• Automatic renewal clauses may 

automatically renew or extend contracts 

unless affirmative action is taken by the 

Government. Such clauses that require 

the obligation of funds prior to 

appropriation violate the restrictions of 

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15012 Federal Register / Vol. 80, No. 54 / Friday, March 20, 2015 / Notices 

the Anti-Deficiency Act, 31 U.S.C. 

1341(a)(1)(B). 

• Termination clauses may allow the 

contractor to unilaterally terminate a 

contract if the Government is alleged to 

have breached the contract. Termination 

clauses and other clauses that permit 

substantive unilateral modification by 

the contractor are not permitted. 

Additionally, Government contracts are 

subject to the Contract Disputes Act of 

1978 (41 U.S.C. 601–613). The Contract 

Disputes Act requires a certain process 

for resolving disputes, including 

terminations, and that the ‘‘Contractor 

shall proceed diligently with 

performance of this contract, pending 

final resolution’’ under the terms of the 

FAR Disputes clause at 52.233–1. 

As a result, Industry and Government 

representatives must undergo lengthy 

and costly contract term negotiations in 

order to avoid Commercial Supplier 

Agreement terms that conflict or are 

incompatible with Federal law. Both 

sides may expend considerable 

resources on legal counsel and 

negotiations before coming to 

agreement. 

Moreover, the current order of 

precedence contained in the commercial 

item clause at FAR 52.212–4 potentially 

allows commercial agreements to 

supersede the terms of Federal 

contracts, especially in those areas 

where Federal law is implicated 

indirectly. As a result, industry and 

Government representatives must spend 

significant time and resources tailoring 

Commercial Supplier Agreements to 

comply with Federal law. 

Discussion 

GSA intends to issue a class deviation 

to clarify the order of precedence in the 

commercial item clause by explaining 

that the terms of the commercial item 

clause control in the event of a conflict 

with a Commercial Supplier Agreement. 

The class deviation will also 

implement standard terms and 

conditions to minimize the need for 

negotiating the terms of Commercial 

Supplier Agreements on an individual 

basis. The new clause will make 

unenforceable any conflicting or 

inconsistent Commercial Supplier 

Agreement terms that are addressed in 

the class deviation, so long as an 

express exception is not authorized 

elsewhere by Federal statute. GSA has 

identified fifteen (15) points of 

inconsistency with Federal law that are 

addressed by this class deviation. Below 

is a list of the fifteen points of 

inconsistency and a summary of how 

they will be addressed by the class 

deviation: 

1. Definition of contracting parties: 

Contract agreements are between the 

commercial supplier or licensor and the 

U.S. Government. Government 

employees or persons acting on behalf 

of the Government will not be bound in 

their personal capacity by the 

Commercial Supplier Agreement. 

2. Contract formation: Commercial 

Supplier Agreements may be integrated 

into a contract, so long as the terms are 

included verbatim and are not 

incorporated by reference. The terms of 

the deviated clause and other identified 

elements will supersede any conflict 

with the Commercial Supplier 

Agreement. This order of precedence 

will allow for the incorporation of 

Commercial Supplier Agreements, with 

certain clauses being stricken as 

unenforceable, without the need to 

individually negotiate agreements. 

‘‘Click-wrap’’, ‘‘Browse-wrap’’ and other 

such mechanisms that purport to bind 

the end-user will not bind the 

Government or any Government 

authorized end-user. 

3. Patent indemnity (contractor 

assumes control of proceedings): Any 

clause requiring that the commercial 

supplier or licensor control any 

litigation arising from the government’s 

use of the contractor’s supplies or 

services is deleted. Such representation 

when the Government is a party is 

reserved by statute for the U.S. 

Department of Justice. 

4. Automatic renewals of term-limited 

agreements: Due to Anti-Deficiency Act 

restrictions, automatic contract renewal 

clauses are impermissible. Any such 

Commercial Supplier Agreement 

clauses are unenforceable. 

5. Future fees or penalties: Future 

fees—such as attorney fees, cost or 

interest—may only be awarded against 

the U.S. Government when expressly 

authorized by statute (e.g. Prompt 

Payment Act). 

6. Taxes: Any taxes or surcharges that 

will be passed along to the Government 

will be governed by the terms of the 

underlying contract. The cognizant 

contracting officer must make a 

determination of applicability whenever 

such a request is made. 

7. Payment terms or invoicing (late 

payment): Any Commercial Supplier 

Agreement terms that purport to 

establish payment terms or invoicing 

requirements that contradict the terms 

of the Government contract will be 

unenforceable. Discrepancies found 

during an audit must comply with the 

invoicing procedures from the 

underlying contract. 

8. Automatic incorporation/deemed 

acceptance of third party terms: No 

third party terms may be incorporated 

into the contract by reference. 

Incorporation of third party terms after 

the time of award may only be 

performed by bilateral contract 

modification with the approval of the 

cognizant contracting officer. 

9. State/foreign law governed 

contracts: Clauses that conflict with the 

sovereign immunity of the U.S. 

Government cannot apply to litigation 

where the U.S. Government is a 

defendant because those disputes must 

be heard either in U.S. District Court or 

the U.S. Court of Federal Claims. 

Commercial Supplier Agreement terms 

that require the resolution of a dispute 

in a forum other than that expressly 

authorized by Federal law are deleted. 

Statutes of limitation on potential 

claims shall be governed by U.S. 

Government law. 

10. Equitable remedies, injunctions, 

binding arbitration: Equitable remedies, 

injunctive relief and binding arbitration 

clauses may not be enforced unless 

explicitly authorized by agency 

guidance or statute. 

11. Unilateral termination of 

Commercial Supplier Agreement by 

supplier: Commercial suppliers may not 

unilaterally terminate or suspend a 

contract unless the supplies or services 

are generally withdrawn from the 

commercial market. Remedy from 

contractual breach by the Government 

must be pursued under the Contract 

Disputes Act. 

12. Unilateral modification of 

Commercial Supplier Agreement by 

supplier: Unilateral changes of the 

Commercial Supplier Agreement are 

impermissible and any clause 

authorizing such changes is 

unenforceable. 

13. Assignment of Commercial 

Supplier Agreement or Government 

contract by supplier: The contract, 

Commercial Supplier Agreement, party 

rights and party obligations may not be 

assigned or delegated without express 

Government approval. Payment to a 

third party financial institution may still 

be reassigned. 

14. Confidentiality of Commercial 

Supplier Agreement terms and 

conditions: The content of the 

Commercial Supplier Agreement and 

the final contract pricing may not be 

deemed confidential. The Government 

may retain other marked confidential 

information as required by law, 

regulation or agency guidance, but will 

appropriately guard such confidential 

information. 

15. Audits (automatic liability for 

payment): Discrepancies found during 

an audit must comply with the 

invoicing procedures from the 

underlying contract. Disputed charges 

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Federal Register / Vol. 80, No. 54 / Friday, March 20, 2015 / Notices 15013 

must be resolved through the Disputes 

clause. Any audits requested by the 

commercial supplier or licensor will be 

performed at supplier or licensor’s 

expense. 

This class deviation will apply to all 

new awards for GSA acquisitions for 

commercial supplies or services. 

Existing contracts will be required to 

incorporate the new terms whenever an 

option period is exercised or the 

contract is otherwise modified. 

This effort will reduce risk by 

uniformly addressing common 

unacceptable Commercial Supplier 

Agreement terms, facilitate efficiency 

and effectiveness in the contracting 

process by reducing the administrative 

burden for the Government and 

industry, and promote competition by 

reducing barriers to industry, 

particularly small businesses. 

Dated: March 17, 2015. 

Jeffrey A. Koses, 

Senior Procurement Executive, Office of 

Acquisition Policy, Office of Governmentwide Policy. 

[FR Doc. 2015–06422 Filed 3–19–15; 8:45 am] 

BILLING CODE 6820–61–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

National Institutes of Health 

Submission for OMB Review; 30-Day 

Comment Request: The Genetic 

Testing Registry 

SUMMARY: Under the provisions of 

section 3507(a)(1)(D) of the Paperwork 

Reduction Act of 1995, the National 

Institutes of Health (NIH) has submitted 

to the Office of Management and Budget 

(OMB) a request for review and 

approval of the information collection 

listed below. This proposed information 

collection was previously published in 

the Federal Register on November 25, 

2014 (79 FR 70194), and allowed 60- 

days for public comment. No public 

comments were received. The purpose 

of this notice is to allow an additional 

30 days for public comment. The Office 

of the Director (OD), National Institutes 

of Health, may not conduct or sponsor, 

and the respondent is not required to 

respond to, an information collection 

that has been extended, revised, or 

implemented on or after October 1, 

1995, unless it displays a currently valid 

OMB control number. 

Direct Comments to OMB: Written 

comments and/or suggestions regarding 

the item(s) contained in this notice, 

especially regarding the estimated 

public burden and associated response 

time, should be directed to the: Office 

of Management and Budget, Office of 

Regulatory Affairs, OIRA_submission@

omb.eop.gov or by fax to 202–395–6974, 

Attention: NIH Desk Officer. 

DATES: Comment Due Date: Comments 

regarding this information collection are 

best assured of having their full effect if 

received within 30-days of the date of 

this publication. 

FOR FURTHER INFORMATION CONTACT: To 

obtain a copy of the data collection 

plans and instruments or request more 

information on the proposed project 

contact: Ms. Sarah Carr, Acting Director, 

Office of Clinical Research and 

Bioethics Policy, Office of Science 

Policy, NIH, 6705 Rockledge Dr., Suite 

750, Bethesda, MD 20892, or call nontoll-free number (301) 496–9838, or 

Email your request, including your 

address to: OCRBP-OSP@od.nih.gov. 

Formal requests for additional plans and 

instruments must be requested in 

writing. 

Proposed Collection: The Genetic 

Testing Registry, 0925–0651, 

Reinstatment Without Change,—Office 

of the Director (OD), National Institutes 

of Health (NIH) 

Need and Use of Information 

Collection: Clinical laboratory tests are 

available for more than 5,000 genetic 

conditions. The Genetic Testing Registry 

(GTR) provides a centralized, online 

location for test developers, 

manufacturers, and researchers to 

voluntarily submit detailed information 

about the availability and scientific 

basis of their genetic tests. The GTR is 

of value to clinicians by providing 

information about the accuracy, 

validity, and usefulness of genetic tests. 

The GTR also highlights evidence gaps 

where additional research is needed. 

OMB approval is requested for 3 

years. There are no costs to respondents 

other than their time. The total 

estimated annualized burden hours are 

5,536. 

ESTIMATED ANNUALIZED BURDEN HOURS

Type of respondent Form name Number of 

respondents 

Number of 

responses per 

respondent 

Average 

burden per 

response 

(in hours) 

Total annual 

burden hours 

Laboratory Personnel Using Bulk 

Submission.

Minimal Fields .................................. 190 29 18/60 1,653 

Optional Fields ................................. 159 29 14/60 1,076 

Laboratory Personnel Not Using 

Bulk Submission.

Minimal Fields .................................. 116 29 30/60 1,682 

Optional Fields ................................. 97 29 24/60 1,125 

Dated: March 13, 2015. 

Lawrence A. Tabak, 

Deputy Director, National Institutes of Health. 

[FR Doc. 2015–06370 Filed 3–19–15; 8:45 am] 

BILLING CODE 4140–01–P 

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