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                -                       the agency or agencies that issued and signed a document                    
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###### General Services Administration

          - 48 CFR Parts 512 and 552
          - [GSAR Case 2008-G504; Docket 2008-0007; Sequence 11]
          - RIN 3090-AI61

# AGENCY:

Office of the Chief Acquisition Officer, General Services Administration (GSA).

# ACTION:

Proposed rule with request for comments.

# SUMMARY:

The General Services Administration (GSA) is proposing to amend the General Services Acquisition Regulation (GSAR) to revise the language pertaining to requirements for the acquisition of commercial items.

# DATES:

Interested parties should submit written comments to the Regulatory Secretariat on or before September 30, 2008 to be considered in the formulation of a final rule.

# ADDRESSES:

Submit comments identified by GSAR Case 2008-G504 by any of the following methods:
      - Regulations.gov: http://www.regulations.gov .                    

Submit comments via the Federal eRulemaking portal by inputting “GSAR Case 2008-G504” under the heading “Comment or Submission”.  Select the link “Send a Comment or Submission” that corresponds with GSAR Case 2008-G504.  Follow the instructions provided to complete the “Public Comment and Submission Form”.  Please include your name, company name (if any), and “GSAR Case 2008-G504” on your attached document.
      - Fax: 202-501-4067.
      - Mail: General Services Administration, Regulatory Secretariat (VPR), 1800 F Street, NW., Room 4041, ATTN: Laurieann Duarte, Washington, DC 20405.       ( print page 44954)      

*Instructions:*                         Please submit comments only and cite GSAR Case 2008-G504 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:

                        For clarification of content, contact Mr. Michael O. Jackson at (202) 208-4949, or by e-mail at                         *michaelo.jackson@gsa.gov*.  For information pertaining to the status or publication schedules, contact the Regulatory Secretariat (VPR), Room 4041, GS Building, Washington, DC 20405, (202) 501-4755.  Please cite GSAR Case 2008-G504.                    

# SUPPLEMENTARY INFORMATION:

## A.  Background

The General Services Administration (GSA) is amending the General Services Administration Acquisition Regulation (GSAR) to revise sections of GSAR Part 512 that provide requirements for the acquisition of commercial items.

This rule is a result of the General Services Administration Acquisition Manual (GSAM) rewrite initiative undertaken by GSA to revise the GSAM to maintain consistency with the Federal Acquisition Regulation (FAR) and to implement streamlined and innovative acquisition procedures that contractors, offerors, and GSA contracting personnel can utilize when entering into and administering contractual relationships.  The GSAM incorporates the General Services Administration Acquisition Regulation (GSAR) as well as internal agency acquisition policy.

                    GSA will rewrite each part of the GSAR and GSAM, and as each GSAR part is rewritten, will publish it in the                     **Federal Register**                    .                

This rule covers the rewrite of GSAR Part 512 and revises the text at GSAR 512.301, Solicitation provisions and contract clauses for the acquisition of commercial items.  GSAR clauses 552.212-70, Preparation of Offer (Multiple Award Schedule), and 552.212-73, Evaluation—Commercial Items (Multiple Award Schedule), are proposed for deletion from GSAR Part 512 and proposed to be moved to GSAR Part 538, Federal Supply Schedule Contracting, as these GSAR clauses are a better fit in GSAR Part 538.  GSAR clauses 552.212-71, Contract Terms and Conditions Applicable to GSA Acquisition of Commercial Items and 552.212-72, Contract Terms and Conditions Required to Implement Statutes or Executive Orders Applicable to GSA Acquisition of Commercial Items, are retained with no changes.

**Discussion of Comments**

Four comments covering Part 512 were received in response to the Advanced Notice of Proposed Rulemaking.  A discussion of these comments is provided below:

**Comment:**                     Add a clause to the GSAM that allows for use of FAR Part 12 in relation to constructions or remodeling of real property.                

**Response:**                     Office of Federal Procurement Policy Memorandum dated July 3, 2003 states “Part 12, as currently promulgated, should rarely, if ever, be used for new construction acquisitions or non-routine alterations and repair services.  In accordance with longstanding practice, agencies should apply the policies of FAR Part 36 to these acquisitions.  Therefore, no additional language is being added to Part 12.                

**Comment:**                     Revise the GSAR to address inconsistencies and duplications between and among GSA contract clauses and FAR Part 12 that are often included in a single contract.                

**Response:**                     The clauses were reviewed and any inconsistencies were eliminated to the maximum extent possible.                

**Comment:**                     Revise the GSAR to encourage contracting officers to consider a vendor's commercial practices and policies during negotiation of contract terms and conditions consistent with the contracting officer's ability to tailor clauses under FAR 12.302.                

**Response:**                     Current FAR Part 12 requires contracting officers to consider a vendor's commercial practices and policies during negotiations of contract terms and conditions.                

**Comment:**                     Revise the GSAR to eliminate inconsistencies and redundancies between the FAR and GSAR in the context of a Federal Supply Schedule, specifically citing Federal Supply Schedule 70.                

**Response:**                     The Federal Supply Schedule clauses have been reviewed and are being published in GSAM Part 538.  Inconsistencies and redundancies between the FAR and GSAR were eliminated to the maximum extent possible.                

This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993.  This rule is not a major rule under 5 U.S.C. 804.

## B.  Regulatory Flexibility Act

                    The General Services Administration 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 the revisions are not considered substantive.  The revisions only update and reorganize existing coverage.  An Initial Regulatory Flexibility Analysis has, therefore, not been performed.  We invite comments from small businesses and other interested parties.  GSA will consider comments from small entities concerning the affected GSAR Parts 512 and 552 in accordance with 5 U.S.C. 610.  Interested parties must submit such comments separately and should cite 5 U.S.C. 601,                     *et seq.*                     (GSAR case 2008-G504), in correspondence.                

## C.  Paperwork Reduction Act

The Paperwork Reduction Act applies; however, these changes to the GSAR do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Number 3090-0027.

# List of Subjects in 48 CFR Parts 512 and 552

      - Government procurement

Dated: July 23, 2008.

Al Matera

Director, Office of Acquisition Policy, U.S. General Services Administration.

Therefore, GSA proposes to amend 48 CFR parts 512 and 552 as set forth below:

# PART 512—ACQUISITION OF COMMERCIAL ITEMS

1. The authority citation for 48 CFR part 512 is revised to read as follows:

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

2.  Amend section 512.301 by revising paragraph (a) to read as follows:

512.301

                    (a)                     *Solicitation provisions and clauses*.  Insert these provisions or clauses in solicitations or solicitations and contracts, respectively, in accordance with the instructions provided:                

                    (1)  552.212-71, Contract Terms and Conditions Applicable to GSA Acquisition of Commercial Items, when listed clauses apply.  The clause provides for incorporation by reference of terms and conditions which are, to the maximum extent practicable, consistent with customary commercial practice.  If necessary, tailor this clause.                          ( print page 44955)    

(2)  552.212-72, Contract Terms and Conditions Required to Implement Statutes or Executive Orders Applicable to GSA Acquisitions of Commercial Items, when listed clauses apply.  The clause provides for the incorporation by reference of terms and conditions required to implement provisions of law or executive orders that apply to commercial item acquisitions.

# PART 552—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

3.  The authority citation for 48 CFR part 552 continues to read as follows:

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

552.212-70

4.  Remove section 552.212-70.

552.212-73

5.  Remove section 552.212-73.

[FR Doc. E8-17540 Filed 7-31-08; 8:45 am]

BILLING CODE 6820-61-S