[Federal Register Volume 75, Number 21 (Tuesday, February 2, 2010)]
[Rules and Regulations]
[Pages 5241-5243]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2180]


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GENERAL SERVICES ADMINISTRATION

48 CFR Parts 512 and 552

[GSAR Amendment 2010-01; GSAR Case 2008-G504 (Change 43); Docket GSAR-
2010-0001; Sequence 1]
RIN 3090-AI61


General Services Administration Acquisition Regulation; Rewrite 
of Part 512, Acquisition of Commercial Items

AGENCIES: Office of Acquisition Policy, General Services Administration 
(GSA).

ACTION: Final rule.

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SUMMARY: The General Services Administration (GSA) is amending the 
General Services Administration Acquisition Regulation (GSAR) to update 
the text addressing the acquisition of commercial items. This rule is a 
result of the GSAM Rewrite initiative undertaken by GSA to revise the 
GSAM to maintain consistency with the Federal Acquisition Regulation, 
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.

DATES: Effective Date: March 4, 2010

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Mr. Michael O. Jackson, Procurement Analyst, at (202) 208-4949. For

[[Page 5242]]

information pertaining to status or publication schedules, contact the 
Regulatory Secretariat (MVPR), Room 4041, 1800 F Street, NW., 
Washington, DC, 20405, (202) 501-4755. Please cite GSAR Amendment 2010-
01, GSAR case 2008-G504 (Change 43).

SUPPLEMENTARY INFORMATION:

A. Background

The GSAR Rewrite Project and Process

    GSA published an Advance Notice of Proposed Rulemaking (ANPR) in 
the Federal Register at 71 FR 7910 on February 15, 2006, with request 
for comments on all parts of the GSAM. As a result, four comments were 
received on GSAR part 512. These comments are addressed below. In 
addition, internal review comments have been incorporated, as 
appropriate. A proposed rule for the regulatory portion of the GSAM was 
published in the Federal Register at 73 FR 44953 on August 1, 2008. The 
public comment period for GSAR part 512 closed on September 30, 2008, 
and no comments were received.

The Rewrite of GSAR Part 512

    This final rule contains the revisions made to GSAR Part 512, 
Acquisition of Commercial Items. The rule revises GSAR part 512 to 
address the text at GSAR 512.301, Solicitation provisions and contract 
clauses for the acquisition of commercial items. Section 512.203 has 
been revised to add language regarding using GSAM part 512 for 
construction contracts. 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

    A proposed rule for the regulatory portion of the GSAM was 
published in the Federal Register on August 1, 2008, at 73 FR 44953. 
The public comment period for GSAR part 512 closed on September 30, 
2008, and no comments were received. Four comments covering GSAR 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: Section 512.203 has been revised to add language 
regarding using GSAM part 512 for construction contracts.
    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 certifies that this final rule 
will not 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.
    This is not a substantive change. Therefore, a Regulatory 
Flexibility Analysis was not performed. In accordance with 5 U.S.C. 
610, the proposed rule requested comments from small entities 
concerning this assessment, and no comments were received.

C. 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 otherwise collect information from offerors, 
contractors, or members of the public that require approval of the 
Office of Management and Budget under 44 U.S.C. Chapter 35, et seq.

List of Subjects in 48 CFR Parts 512 and 552

    Government procurement.

    Dated: January 26, 2010.
David A. Drabkin,
Senior Procurement Executive, Office of Acquisition Policy, General 
Services Administration.

0
Therefore, GSA amends 48 CFR parts 512 and 552 as set forth below:
0
1. The authority citation for 48 CFR parts 512 and 552 continues to 
read as follows:

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

PART 512--ACQUISITION OF COMMERCIAL ITEMS

0
2. Revise section 512.301 to read as follows:


512.301  Solicitation provisions and contract clauses for the 
acquisition of commercial items.

    (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.
    (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.
    (b) Discretionary use of GSAR provisions and clauses. Consistent 
with the limitations contained in FAR 12.302(c), include in 
solicitations and contracts by addendum other GSAR provisions and 
clauses.

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    (c) Use of additional provisions and clauses. The Senior 
Procurement Executive must approve the use of a provision or clause 
that is either not:
    (1) Prescribed in the FAR or GSAR for use in contracts for 
commercial items.
    (2) Consistent with customary commercial practice.
    (d) In solicitations issued in conjunction with the policy and 
procedures in FAR part 14, Sealed Bidding; or FAR part 15, Contracting 
by Negotiation, include the two notices in paragraphs (d)(1) and (d)(2) 
of this section, except that acquisitions of leasehold interests in 
real property, must include only the notice in paragraph (d)(1) of this 
section.
    (1) The information collection requirements contained in this 
solicitation/contract are either required by regulation or approved by 
the Office of Management and Budget pursuant to the Paperwork Reduction 
Act and assigned OMB Control No. 3090-0163.
    (2) The General Services Administration's hours of operation are 8 
a.m. to 4:30 p.m. Requests for preaward debriefings postmarked or 
otherwise submitted after 4:30 p.m. will be considered submitted the 
following business day. Requests for postaward debriefings delivered 
after 4:30 p.m. will be considered received and filed the following 
business day.

PART 552--SOLICITATIONS PROVISIONS AND CONTRACT CLAUSES


552.212-70   [Removed and Reserved]

0
3. Remove and reserve section 552.212-70.


552.212-73   [Removed and Reserved]

0
4. Remove and reserve section 552.212-73.

[FR Doc. 2010-2180 Filed 2-1-10; 8:45 am]
BILLING CODE 6820-61-P