60224 Federal Register / Vol. 73, No. 198 / Friday, October 10, 2008 / Proposed Rules 

Flooding source(s) Location of referenced elevation ** 

* Elevation in feet (NGVD) 

+ Elevation in feet (NAVD) 

# Depth in feet above 

ground Communities affected 

Effective Modified 

Unincorporated Areas of Yakima County 

Maps are available for inspection at 128 N. 2nd St., Yakima, WA 98901. 

(Catalog of Federal Domestic Assistance No. 

97.022, ‘‘Flood Insurance.’’) 

Dated: September 29, 2008. 

Michael K. Buckley, 

Acting Assistant Administrator, Mitigation 

Directorate, Department of Homeland 

Security, Federal Emergency Management 

Agency. 

[FR Doc. E8–24089 Filed 10–9–08; 8:45 am] 

BILLING CODE 9110–12–P 

GENERAL SERVICES 

ADMINISTRATION 

48 CFR Parts 514, 552, and 553 

[GSAR Case 2008–G505; Docket 2008–0007; 

Sequence 20] 

RIN 3090–AI73 

General Services Acquisition 

Regulation; GSAR Case 2008–G505; 

Rewrite of GSAR Part 514, Sealed 

Bidding 

AGENCY: Office of the Chief Acquisition 

Officer, General Services 

Administration (GSA). 

ACTION: Proposed rule. 

SUMMARY: The GSA is proposing to 

amend the General Services Acquisition 

Regulation (GSAR) to revise the GSAR 

language regarding requirements for 

sealed bidding. 

DATES: Interested parties should submit 

written comments to the Regulatory 

Secretariat on or before December 9, 

2008 to be considered in the 

formulation of a final rule. 

ADDRESSES: Submit comments 

identified by GSAR Case 2008–G505 by 

any of the following methods: 

• Regulations.gov: http:// 

www.regulations.gov. 

Submit comments via the Federal 

eRulemaking portal by inputting ‘‘GSAR 

Case 2008–G505’’ under the heading 

‘‘Comment or Submission’’. Select the 

link ‘‘Send a Comment or Submission’’ 

that corresponds with GSAR Case 2008– 

G505. Follow the instructions provided 

to complete the ‘‘Public Comment and 

Submission Form’’. Please include your 

name, company name (if any), and 

‘‘GSAR Case 2008–G505’’ 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. 

Instructions: Please submit comments 

only and cite GSAR Case 2008–G505 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–G505. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The GSA is amending the GSAR to 

revise sections of GSAR Part 514 that 

provide requirements for sealed 

bidding. This amendment is a result of 

the GSA 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 GSAR as 

well as internal agency acquisition 

policy. 

The 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 514. The specific changes are as 

follows: 

• 501.106 OMB Approval under the 

Paperwork Reduction Act. 

° Added Control Number 3090–0163 

as a cross reference for 514.201–1. 

• 514.201–2 Part I—The Schedule. 

° Changed (a) from ‘‘When you’’ to 

‘‘When using. ’’ Also in (a) changed 

‘‘which’’ to ‘‘that’’ and added the FAR 

clause number for Prompt Payment. 

° Changed (b) from ‘‘When you use’’ 

to ‘‘When using’’ to clarify the reference 

to ‘‘you’’ and added a reference to the 

Standard Form 1449 as an example that 

this form can also be used. 

• 514.201–6 Solicitation provisions. 

° Changed ‘‘When you’’ to ‘‘When 

considering’’ to delete the reference to 

the word ‘you’. 

° Deleted the reference for Alternate I 

because it is not consistent with the 

intention of the basic clause. 

• 514.201–7 Contract clauses. 

° In the old paragraph (a) changed 

‘‘you’’ to ‘‘The contracting officer’’. 

° Deleted paragraph (b), Examination 

of Records. The clause does not provide 

basic audit rights that are in addition to 

the FAR clauses at 52.215–2, Audit and 

Records-Negotiation and 52.214–26, 

Audit and Records — Sealed Bidding. 

And as opposed to the GSA clause, the 

FAR clause is specific to sealed bids. 

Further, the GSA clause grants to the 

agency rights to audit subcontractors 

that are in excess of those granted by the 

FAR and the statute. 

• 514.202–4 Bid samples. 

° Renamed subparagraphs (a) and (b) 

to be more consistent with the FAR. 

Also in (a) and (b) restructured the 

language to remove the word ‘‘you’’ and 

replaced with contracting officer. 

° Clarified the language to state who 

must take physical custody of bid 

samples. 

° Deleted paragraph (c) because it is 

redundant with FAR 14.202–4(d). 

° Added a new 514.202–5, Descriptive 

Literature, in order to address the 

requirements of FAR 14.202–5(c). 

• 514.203 Methods of soliciting bids. 

° Removed because we are not using 

paper copies and to be consistent with 

the FAR. 

• 514.203–1 Transmittal to 

prospective bidders. 

° Removed because we are not using 

paper copies and to be consistent with 

the FAR. 

• 514.270–2 Justification for use. 

° Inserted ‘‘the contracting officer 

should’’ in paragraph b and made last 

sentence of (3) a new number (4) and 


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renumbered old paragraphs (4) and (5) 

to (5) and (6), respectively. 

° Added ‘‘the contracting officer 

should’’ to replace the understood 

‘‘you’’ and deleted ‘‘Do’’ in paragraph c. 

• 514.270–3 Evaluation factors for 

award. 

° Edited to avoid either using the 

passive voice or repeating ‘‘the 

contracting officer.’’ 

• 514.270–4 Grouping line items for 

aggregate award. 

° In paragraph (a) the title ‘‘Type of 

contract’’ was changed to one that is 

more descriptive of the substance of the 

paragraph; type of contract refers to Part 

16 contract types. 

° In paragraph (b) changed the ‘‘when 

you group’’ to ‘‘when grouping’’ and in 

(d)(3)(i) changed ‘‘It can cause you to 

lose’’ to ‘‘It can cause the loss of’’. 

• 514.270–6 Guidelines for using the 

weight factors method. 

° In paragraph (a) changed ‘‘you have’’ 

to ‘‘there are’’; in paragraph (d) changed 

‘‘You may reduce estimated quantities’’ 

to ‘‘Estimated quantities may be 

reduced’’. In paragraph (e) deleted the 

‘‘you’’ in the first sentence. 

• 514.270–7 Guidelines for using the 

price list method. 

° Changed ‘‘you need to make’’ in 

paragraph (a) to ‘‘making’’. 

° In paragraph (b) changed ‘‘When you 

use’’ to ‘‘using’’. 

° In paragraph (c) changed ‘‘You may 

develop price lists’’ to ‘‘Price lists may 

be developed’’. 

° In paragraph (d) changed ‘‘you use’’ 

to ‘‘the contracting officer uses’’ and 

changed ‘‘You may provide’’ to ‘‘This 

information may be provided’’. 

° In paragraph (e) changed ‘‘You may 

use prices’’ to ‘‘Prices may be used’’. 

° In paragraph (h) changed ‘‘If you 

cannot estimate the Government’s 

needs’’ to ‘‘If the Government’s needs 

cannot be estimated’’. 

° In paragraph (i)(6) changed ‘‘If you 

provide’’ to ‘‘If providing’’. 

° In paragraph (i)(8) deleted the 

sentence in its entirety and replaced 

with ‘‘When the solicitation further 

groups united prices by trade or 

business category, multiple percentages 

may be required’’. 

• 514.407–3 Other mistakes disclosed 

before award. 

° Deleted paragraph (b) because it is 

redundant with FAR 14.407–3(f). 

° Renumbered old paragraphs (1) and 

(2), (a) and (b), respectively. 

• 514.407–4 Mistakes after award. 

° Added ‘‘are required to’’ and 

changed ‘‘your’’ to ‘‘the contracting 

officer’s’’. 

• 552.214–70 ‘‘All or None’’ Offers. 

° Deleted the Sep 1999 date and 

replaced with [DATE]. 

° In subparagraph (a) deleted the first 

part of the sentence so it now to begins 

with ‘‘The government...’’ 

° Deleted Alternate I in its entirety to 

match the proposed changes. 

• 552.214–71 Progressive Awards and 

Monthly Quantity Allocations. 

Unchanged. 

• 552.214–72 Bid Sample 

Requirements. 

° Deleted ‘‘NOTE (1)’’ because it is 

redundant. 

Discussion of Comments 

There were no public comments 

received in response to the Advanced 

Notice of Proposed Rulemaking. 

B. Regulatory Flexibility Act 

The 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 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. The GSA 

will consider comments from small 

entities concerning the affected GSAR 

Part 514 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– 

G505), 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 514, 

552, and 553 

Government procurement. 

Dated: September 17, 2008 

Al Matera, 

Director,Office of Acquisition Policy. 

Therefore, GSA proposes to amend 48 

CFR parts 514, 552, and 553 as set forth 

below: 

1. The authority citation for 48 CFR 

parts 514, 552, and 553 continues to 

read as follows: 

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

PART 514—SEALED BIDDING 

2. Revise section 514.201–2 to read as 

follows: 

514.201–2 Part I—The Schedule. 

(a) When using Standard Form 33, 

Solicitation, Offer and Award, include 

the following cautionary notice: 

‘‘Notice to Bidders—Use Item 13 of the 

Standard Form 33, Solicitation, Offer and 

Award, to offer prompt payment discounts. 

The Prompt Payment clause of this 

solicitation sets forth payment terms. Do not 

insert any statement in Item 13 that requires 

payment sooner than the time stipulated in 

the Prompt Payment clause (See FAR 52.232– 

25). EXAMPLE: If you insert ‘‘NET 20’’ in 

Item 13, GSA will reject your offer as 

nonresponsive because the entry contradicts 

the 30 day payment terms specified in the 

Prompt Payment clause.’’ 

(b) When using other authorized 

forms (e.g., Standard Form 1447, 

Solicitation/Contract; Standard Form 

1449, Solicitation/Contract/Order for 

Commercial Items), include the notice 

in paragraph (a) of this subsection. 

Change the reference to the form 

number, form title, and item number 

accordingly. 

3. Revise section 514.201–6 to read as 

follows: 

514.201–6 Solicitation provisions. 

When considering all or none bids, 

insert the provision at 552.214–70, ‘‘All 

or None’’ Offers, in the solicitation. 

4. Revise section 514.201–7 to read as 

follows: 

514.201–7 Contract clauses. 

Stock replenishment contracts. For 

some stock replenishment contracts, 

individual contractors may be unable to 

furnish the Government’s monthly 

requirements. The contracting officer 

may determine that progressive awards 

will be more expedient. In such cases, 

insert a clause substantially the same as 

the clause at 552.214–71, Progressive 

Awards and Monthly Quantity 

Allocations, in the solicitation and 

contract. 

5. Revise section 514.202–4 to read as 

follows: 

514.202–4 Bid samples. 

(a) Requirements for samples in 

invitations for bids. (1) When bid 

samples are required, the contracting 

officer shall require bidders to submit 

samples produced by the manufacturer 

whose products will be supplied under 

the contract. 

(2) The FAR limits use of bid samples 

to cases where the contracting officer 

cannot describe some characteristics of 

a product adequately in the 

specification or purchase description. 

This usually applies to subjective 

characteristics. The contracting officer 

may determine that there is a need to 


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examine objective characteristics of bid 

samples to determine the 

responsiveness of a bid. The contracting 

officer should base the determination on 

past experience or other valid 

considerations. In the solicitation, 

separately list ‘‘Subjective 

Characteristics’’ and ‘‘Objective 

Characteristics.’’ 

(3) A provision appears at 552.214– 

72, Bid Sample Requirements. This 

provision may be modified to fit the 

circumstances of a procurement. 

(b) Handling bid samples. (1) Samples 

from accepted bids must be retained for 

the period of contract performance. If 

there are no outstanding claims 

regarding the contract, the contracting 

officer may authorize disposal of the 

samples at the end of the contract term 

following the bidder’s instructions. 

(2) If the contracting officer 

anticipates a claim regarding the 

contract, the contracting officer shall 

require that the bid samples be retained 

until the claim is resolved. 

(3) The contracting officer shall 

require that samples from unsuccessful 

bids be retained until award. After 

award, these samples may be disposed 

of following the bidder’s instructions. 

6. Add section 514.202–5 to read as 

follows: 

514.202–5 Descriptive Literature. 

Requirements for Invitations for bids. 

When using brand name or equal 

purchase descriptions, the provision at 

FAR 52.211–6 satisfies the requirement 

for descriptive literature. 

514.203 [Removed] 

7. Remove section 514.203. 

8. Amend section 514.270-2 by 

revising the section heading, 

redesignating paragraphs (a)(4) and 

(a)(5) as (a)(5) and (a)(6), respectively, 

adding new paragraph (a)(4), and 

revising paragraphs (b) introductory 

text, and (c) to read as follows:: 

514.270–2 Justification for use. 

* * * * * 

(4) Awarding the low-demand articles 

in conjunction with the high-demand 

articles may encourage competition. 

* * * * * 

(b) Before deciding to combine items 

for aggregate award, the contracting 

officer should consider the following 

factors: 

* * * * * 

(c) The contracting officer should not 

use an aggregate award if it will 

significantly restrict the number of 

eligible bidders. 

9. Revise section 514.270–3 to read as 

follows: 

514.270–3 Evaluation factors for award. 

The solicitation should clearly state 

the basis for evaluating bids for 

aggregate award, require bidders to 

submit a price on each item within the 

group or a percentage to be added or 

subtracted from a list price, and advise 

bidders that failure to submit prices as 

required within a group makes a bid 

ineligible for award for that group. 

10. Amend section 514.270–4 by 

revising paragraphs (a), (b), and (d)(3)(i) 

to read as follows: 

514.270–4 Grouping line items for 

aggregate award. 

(a) Supplies and services. This 

subsection applies to acquisitions of 

supplies and services. 

(b) Effect on competition. Provide for 

full and open competition when 

grouping items for award. Grouping 

items for award may preclude a 

significant number of firms from 

bidding. This occurs if firms are unable 

to provide all the types or quantities of 

supplies or services, or make deliveries 

to the various delivery points included 

in the prospective aggregate group. 

* * * * * 

(d) * * * 

(3) * * * 

(i) Grouping widespread geographic 

locations or delivery points may reduce 

competition or result in higher prices. It 

can cause the loss of ‘‘area pricing’’ 

advantages provided by a supplier with 

a single production point. 

* * * * * 

11. Amend section 514.270–6 by— 

a. Revising the first sentence of 

paragraph (a) introductory text; 

b. Revising the first sentence of 

paragraph (d); and 

c. Removing from paragraph (e) the 

word ‘‘you’’. 

The revised text reads as follows: 

514.270–6 Guidelines for using the weight 

factors method. 

(a) Use the weight factors method 

when there are reliable estimates for the 

quantities needed in an acquisition. * * 

* 

* * * * * 

(d) Estimated quantities may be 

reduced to smaller numbers by a 

common denominator. * * * 

* * * * * 

12. Amend section 514.270–7 by— 

a. Revising the first sentence in 

paragraph (a); 

b. Revising the introductory text of 

paragraphs (b) and (c); 

c. Revising paragraph (d); 

d. Revising the second sentence of 

paragraph (e); 

e. Revising the third sentence in 

paragraph (h), and paragraphs (i)(6) and 

(i)(8). 

The revised text reads as follows: 

514.270–7 Guidelines for using the price 

list method. 

(a) General. The price list method 

helps avoid unbalanced bidding when 

making aggregate awards, but lack 

accurate estimates of anticipated 

quantities. * * * 

(b) Solicitation requirements. When 

using the price list method, in the 

solicitation: 

* * * * * 

(c) Developing list prices. Price lists 

may be developed using one or more of 

the following sources: 

* * * * * 

(d) First time use for an item or 

service. The first time the contracting 

officer uses list prices for an item or 

service, give prospective bidders an 

opportunity to review the proposed list. 

Also provide information on how GSA 

will use the list prices. This information 

may be provided in a draft solicitation. 

(e) * * *. Prices may be used from 

previous awards made using the weight 

factors method to develop price lists. 

* * * * * 

(h) * * *. If the Government’s needs 

cannot be estimated, the solicitation 

may include past orders. * * * 

(i) * * * 

(6) If providing quantity estimates, 

state that the estimates are for 

information only and do not constitute 

guarantees or commitments to order 

items under the contract. 

* * * * * 

(8) When the solicitation further 

groups unit prices by trade or business 

category, multiple percentages may be 

required. 

* * * * * 

13. Revise section 514.407–3 to read 

as follows: 

514.407–3 Other mistakes disclosed 

before award. 

Delegation of authority by head of the 

agency. Under FAR 14.407–3(e), 

contracting directors (see 502.101) are 

authorized, without power of 

redelegation, to make— 

(a) The determinations regarding 

corrections and withdrawals under FAR 

14.407–3(a), (b), and (c); and 

(b) The corollary determinations not 

to permit withdrawal or correction 

under FAR 14.407–3(d). 

14. Revise section 514.407–4 to read 

as follows: 

514.407–4 Mistakes after award. 

The contracting director and assigned 

counsel are required to review and 

approve the contracting officer’s 

determinations under FAR 14.407–4(b) 

and (c). 


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PART 552—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

15. Amend section 552.214–70 by— 

a. Revising the date of the provision; 

b. Revising paragraph (a); and 

c. Removing Alternate I. 

The revised text reads as follows: 

552.214–70 ‘‘All or None’’ Offers. 

* * * * * 

‘‘ALL OR NONE’’ OFFERS (DATE) 

(a) The Government reserves the right 

to evaluate offers and make awards on 

an ‘‘all or none’’ basis as provided 

below. 

* * * * * 

(End of provision) 

16. Amend section 552.214–72 by— 

a. Revising the date of the provision; 

b. Revising the ‘‘Note’’; and 

c. Adding text for the Contracting 

Officer’s address. 

The revised and added text reads as 

follows: 

552.214–72 Bid Sample Requirements. 

* * * * * 

BID SAMPLE REQUIREMENTS (DATE) 

* * * * * 

NOTE: Bidders that propose to 

furnish an item or group of items from 

more than one manufacturer or 

production point must submit two 

samples from the production of each 

manufacturer or production point. 

* * * * * 

Contracting Officer insert address. 

lllllllll 

lllllllll 

lllllllll 

(End of provision) 

PART 553—FORMS 

553.370–3577 [Removed] 

17. Remove section 553.370–3577 

[FR Doc. E8–22795 Filed 10–9–08; 8:45 am] 

BILLING CODE 6820–61–S 


sroberts on PROD1PC70 with PROPOSALS