4596 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 

GENERAL SERVICES 

ADMINISTRATION 

48 CFR Part 538 

[GSAR Case 2006–G507; Docket 2009–0013; 

Sequence 1] 

RIN 3090–AI77 

General Services Acquisition 

Regulation; GSAR Case 2006–G507; 

Rewrite of GSAR Part 538, Federal 

Supply Schedule Contracting 

AGENCY: General Services 

Administration (GSA), Office of the 

Chief Acquisition Officer. 

ACTION: Proposed rule. 

SUMMARY: The GSA is proposing to 

amend the General Services 

Administration Acquisition Regulation 

(GSAR) to revise sections of the GSAR 

that provide requirements for Federal 

Supply Schedule Contracting actions. 

DATES: Interested parties should submit 

written comments to the Regulatory 

Secretariat on or before March 27, 2009 

to be considered in the formulation of 

a final rule. 

ADDRESSES: Submit comments 

identified by GSAR Case 2006–G507 by 

any of the following methods: 

• Regulations.gov: http:// 

www.regulations.gov. 

Submit comments via the Federal 

eRulemaking portal by inputting ‘‘GSAR 

Case 2006–G507’’ under the heading 

‘‘Comment or Submission’’. Select the 

link ‘‘Send a Comment or Submission’’ 

that corresponds with GSAR Case 2006– 

G507. Follow the instructions provided 

to complete the ‘‘Public Comment and 

Submission Form’’. Please include your 

name, company name (if any), and 

‘‘GSAR Case 2006–G507’’ on your 

attached document. 

• Fax: 202–501–4067. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(VPR), 1800 F Street, NW., Room 4041, 

ATTN: Hada Flowers, Washington, DC 

20405. 

Instructions: Please submit comments 

only and cite GSAR Case 2006–G507 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. 

Warren Blankenship at (202) 501–1900, 

or by e-mail at 

warren.blankenship@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 2006–G507. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The General Services Administration 

is amending the General Services 

Administration Acquisition Regulation 

(GSAR) to update the text addressing 

GSAR Part 538, Federal Supply 

Schedule Contracting: Subpart 538.1, 

Definitions; Subpart 538.4, 

Administrative Matters; Subpart 538.7, 

Acquisition Planning; Subpart 538.9, 

Contractor Qualifications; Subpart 

538.12, Acquisition of Commercial 

Items—FSS; Subpart 538.15, 

Negotiation and Award of Contracts; 

Subpart 538.17, Administration of 

Evergreen Contracts; Subpart 538.19, 

FSS and Small Business Programs; 

Subpart 538.25, Requirements for 

Foreign Entities; Subpart 538.42, 

Contract Administration and Subpart 

538.43, Contract Modifications. This 

rule 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 use when 

entering into and administering 

contractual relationships. The GSAM 

incorporates the GSAR as well as 

internal agency acquisition policy. 

The GSA is in the process of rewriting 

each part of the GSAR and GSAM, and 

as each GSAR part is rewritten, will 

publish it in the Federal Register. 

This proposed rule covers the GSAR 

portion of Part 538. The information in 

Subpart 538.2 is being retained; 

however, the various sections have been 

redistributed to more appropriate 

subparts within the text. Subpart 538.9, 

Contractor Qualifications, is being 

added to define the roles and 

responsibilities of ‘‘Contractor 

Partnering Arrangements (CPAs)’’ for 

contractors. Subpart 538.12, Acquisition 

of Commercial Items, has been added to 

outline solicitation provisions and 

clauses. This subpart was formerly 

538.273—Contract clauses, but was 

moved to 538.1203 so as to align with 

the FAR. Aside from individual 

prescriptions, GSA has also included an 

overarching prescription that directs the 

contracting officer to insert appropriate 

provisions and clauses, when 

applicable. Additionally, 96 provisions/ 

clauses are now proposed for inclusion. 

Some of the provisions/clauses are new, 

some are being retained, and others are 

being relocated from other GSAM parts. 

Subpart 538.15, Negotiation and 

Award of Contracts, has been added to 

provide clarity to FSS contracting 

officers regarding contract evaluation 

and award. The current section 538.270, 

Evaluation of multiple award schedule 

(MAS) offers, has been relocated to 

Subpart 538.15. It contains minor 

revisions within the text to clarify the 

contracting officer’s role as well as a 

revised title and section, 538.1504, 

Evaluation of commercial pricing 

practices. Also, 538.272, MAS price 

reductions, has been revised for clarity. 

More specifically, the term ‘‘eligible 

ordering activity’’ has been changed to 

‘‘Government’’ to bring clarity to the 

relationship between the Government 

and the contractor, and to ensure that 

the contractor understands the 

importance of maintaining this 

correlation of price relationship for the 

duration of the contract. The revision 

can be found at section 538.1508. 

Subpart 538.25, Requirements for 

Foreign Entities, is added to advise 

contractors to submit commercial price 

lists in English and to allow for 

payments in local currency. Subpart 

538.42, Contract Administration, is 

being added to advise the contractor to 

abide by the terms and conditions of the 

Industrial Funding Fee (IFF) and Sales 

Reporting Requirements when entering 

into ‘‘Contractor Partnering 

Arrangements (CPAs),’’ and to explain 

the process and procedures that should 

be followed when cancelling a contract 

at the contractor’s request. Subpart 

538.43, Contract Modifications, is added 

to provide guidance to the contractor 

when initiating a modification request 

to the Government. 

There were 36 public comments 

received in response to the Advanced 

Notice of Proposed Rulemaking. 

The first commenter recommended 

suggestions in regard to GSAR 552.238– 

75, Price Reductions (May 2004) clause, 

the Commercial Sales Practices Format 

(CSPF) in GSAR 515.408, and figure 

515.4, Instructions that accompany the 

CSPF. First, the commenter indicated 

that the failure to identify the customer 

(or category of customers) that formed 

the basis of award in the Price 

Reductions clause needs to be corrected. 

Response: Though the rewrite team 

reviewed this comment as substantive, 

it was unable to be addressed at this 

time. The team will confer with the 

Multiple Award Schedule Advisory 

Panel for possible recommendations. 

Second, the commenter indicated that 

more consistent parameters were 

needed for the ‘‘Commercial Sales 

Practices’’ disclosure section. GSAM 

Part 505 includes a GSAM Form 3617, 

Record of Authorization of Access to 

Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 4597 

Proprietary or Source Selection 

Information, which the GSA contracting 

community will use to ensure that 

proprietary data is not released. 

The second commenter suggested that 

GSA be proactive in using GSAM Part 

538 to address unresolved issues 

regarding GSA Schedule contracting. 

The GSA contractors have requested 

guidance and consistent policy on 

matters such as time and material task 

orders, and the extent to which G&A can 

be added to travel. Though some of 

these issues are addressed generally in 

the FAR, specific questions regarding 

application to Schedules contracting 

have remained unanswered, leading to 

inconsistent applications across the 

Schedules program. 

Response: The team’s analysis of this 

comment is that it is outside the scope 

of this part. Currently, the Schedule’s 

acquisition community uses FAR 

52.232–7, Payments Under Time and 

Material, and FAR 31.205–46, Travel 

Costs, to address time and material task 

orders. However, specific guidance for 

contracting officers for time and 

material task orders is under internal 

review. 

The third commenter suggested that 

the GSAR should include coverage on 

Governmentwide Acquisition Contracts 

(GWACs) contracting and the use of 

GSA Assisted Service. Presently, the 

GSAR covers neither of these topics. 

Such areas of discussion, according to 

the commenter, should include criteria 

for establishing GWAC and/or assisted 

acquisition services, pricing objectives, 

and standard clauses. The commenter 

stated that adding GWAC coverage 

would enable the government to 

implement the best practices of 

individual offices across the entire 

program, afford GSA contractors an 

opportunity to streamline their internal 

corporate systems and processes, and 

result in better service and more cost 

efficient systems that may ultimately 

reflect in the Government’s prices. 

Response: The Team’s analysis of this 

comment is that it is outside the scope 

of this part. The team has referred this 

comment to the GSAM Part 516, Types 

of Contracts, team. 

The fourth commenter suggested that 

GSA resolve how the requirement to 

annually update the Central Contractor 

Registration (CCR) affects the position 

that small business size status is as of 

the time the offer is submitted. This 

problem stems from the number of 

corporate acquisitions and 

restructurings that continue to take 

place in the commercial marketplace. 

The commenter recommended that GSA 

rationalize the rules of FAR 42.12, 

GSAR 542.12 and the commercial item 

clause at FAR 52.212–4(p). 

Response: The team’s analysis 

concludes that this comment is outside 

the scope of this part. This is a comment 

that would have Government-wide 

application. 

The fifth commenter suggested that 

the GSAR prescribe language to insert 

into GSA Schedule Price Lists on the 

topic of Size Status and the CCR. The 

language would inform agencies that, 

notwithstanding data in CCR, for 

purposes of ordering against the 

Schedule, a contractor is designated as 

small in size for the entire 5-year period 

of the Schedule contract. Schedule 

contractors are required to recertify size 

status at the time of renewal. 

Additionally, the commenter suggests 

that GSAR resolve how the requirement 

to annually update CCR affects the 

position that small business size status 

is currently determined at the time the 

offer is submitted. 

Response: The team’s analysis 

concluded that guidance at FAR 52.219– 

28, Post-Award Small Business Program 

Rerepresentation, appropriately 

addresses and provides guidance to the 

acquisition and contractor communities 

to ensure proper implementation of size 

considerations at various times during 

the contract. From time of submittal to 

award, offerors are required to maintain 

information in CCR as current and 

accurate. 

The sixth commenter suggested that 

GSA consider adding a section 

describing the purpose and objectives of 

Schedule contracting. Such a section 

would provide context and focus that 

could help improve consistency in the 

myriad of decisions that contracting 

officers have to make daily. For 

example, some contracting officers are 

attempting to compare prices offered by 

one company to prices of another for 

similar, but not identical, services and 

products. This process was found to be 

highly objectionable. 

Response: The team’s analysis 

concludes that the rewrite of GSAM Part 

538 will adequately provide contracting 

officers consistent guidance and policy. 

The seventh commenter suggested 

that GSA clarify the MAS pricing policy 

by deleting the term ‘‘most favored 

customer (MFC)’’ from this section of 

the GSAR. 

Response: The team does not concur 

with this comment because the 

convention of the term ‘‘most favored 

customer’’ still remains a viable practice 

across the FSS program. 

The eighth commenter suggested that 

the GSAR more specifically state the 

circumstances that warrant the 

Government getting a lower discount 

than commercial customers. 

Response: The team does not concur 

with this comment because section 

538.1504, Evaluation of commercial 

pricing practices (formerly 538.270), 

clearly outlines the criteria for the 

Government to seek a lower discount 

than commercial customers. 

The ninth commenter suggested that 

GSAR be revised to reflect that many 

MAS contracts are no longer awarded as 

a discount from catalog. This shift has 

occurred because more services have 

been introduced into the program. 

Response: The team concurs with this 

comment and has created a Commercial 

Sales Practices Format (CSP–2), GSAR 

538.1203(c)(42) for ‘‘Professional 

Services’’ to reflect contracts awarded 

for services. 

The tenth commenter suggested that 

the GSAR should limit (or give better 

guidance) as to the number of 

commercial customers that can be the 

basis of award. 

Response: The team does not concur 

with this comment. Current guidance as 

outlined in section 538.1504 allows the 

contracting officer the flexibility to 

analyze numerous factors to establish 

the customer for the basis of award. 

The 11th commenter suggested that 

GSA eliminate the Price Reductions 

Clause (552.238–75). 

Response: The team does not concur 

with this comment. In keeping with the 

philosophy of the FSS Program, this 

clause should remain. The team will 

await the results of the Multiple Award 

Schedule Advisory Panel’s analysis and 

recommendations and will consider this 

when assessing the clause’s validity 

within the program. 

The 12th commenter suggested that 

the GSAR should provide specific 

guidelines on the Schedule renewal 

process. 

Response: The team concurs with this 

comment and has added verbiage at 

GSAR 538.4202, Administration of 

Evergreen Contracts. 

The 13th commenter suggested that 

exceptions to the Price Reduction 

Clause be considered for situations 

where the Government is not 

negotiating discounts from a 

commercial price list; also, the 

commenter suggested that the 

Government give consideration to using 

price analysis and price acceptance 

from a vendor’s average selling price. 

Response: The team partially concurs 

with this comment and has created a 

CSP–2 Format, GSAR 538.1203(c)(42) 

for ‘‘Professional Services’’ to reflect 

contracts awarded for services without a 

commercial price list. Also, the team 

will confer with the Multiple Award 

4598 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 

Schedule Advisory Panel for possible 

recommendations in this area. 

The 14th commenter recommended 

providing guidance on establishing 

relationships with dealers/distributors/ 

resellers under the FSS Program in 

terms of tracking customer selections. 

Response: The team does not concur 

with this comment. The Price 

Reductions Clause encompasses a 

mechanism for tracking customers in 

dealer/distributor/reseller situations. 

This can be accomplished under 

‘‘category of customers.’’ Further, the 

team will confer with the Multiple 

Award Schedule Advisory Panel for 

possible recommendations in this area. 

The 15th commenter suggested the 

addition of guidance on sales volume 

for vendor consideration under the FSS 

Program—Contract Award Sales Criteria 

Clause. 

Response: The team partially concurs 

with this comment. First, the team 

revised the Commercial Sales Practices 

Format (CSP–1) to bring clarity to the 

‘‘Instructions’’ section, explaining that 

the contracting officer has the discretion 

to change offeror estimated sales to 

conform with the level of sales 

expectancy. The business decision will 

be based upon the contracting officer’s 

analysis of the offeror’s submission and 

a realistic evaluation of expected sales. 

The 16th commenter suggested 

adding guidance on how to handle 

teaming arrangements. 

Response: The team concurs with this 

comment and has added guidance on 

Teaming Arrangements, which will be 

entitled ‘‘Contractor Partnering 

Arrangements (CPAs),’’ and the team 

added guidance on the application of 

the CPAs to the Federal Supply 

Schedule Program. 

The 17th commenter suggested that 

FAR 52.212–4(s), Order of Precedence, 

be revised to resolve any inconsistencies 

discovered in the solicitation or 

resulting contract. 

Response: The team reviewed the 

comment and does not concur. This 

comment is deemed outside the scope of 

this part and should be resolved at the 

FAR level. 

The 18th commenter suggested 

adding the following verbiage to update 

GSAR 552.238–75, Price Reductions: 

‘‘The identified customer or category of 

customers may, but is not required to 

be, the Offeror’s most-favored 

customer.’’ The intent here is to clarify 

the misconception as to whether the 

tracking customer is required to be the 

MFC for a particular product or group 

of products or service. 

Response: The team does not concur 

with this comment, and feels that the 

addition of this verbiage would 

convolute the intent of the current Price 

Reductions Clause. Moreover, it would 

diminish the contracting officer’s 

authority to establish a viable price/ 

discount relationship with the offeror. 

The 19th commenter recommended 

that GSAR 552.238–75(a) be revised to 

be consistent with GSAR 538.272 to 

make clear that a change in the price/ 

discount relationship between the 

eligible ordering activity and the 

tracking customer(s) does not trigger a 

price reduction under the clause unless 

that change also ‘‘results in a less 

advantageous relationship’’ for the 

Government. 

Response: The team does not concur 

with this comment and feels that the 

intent is clearly defined in the current 

Price Reduction Clause. Additionally, 

GSAR 538.272 has been proposed for 

deletion. 

The 20th commenter suggested 

deleting the verbiage ‘‘with the same 

effective date and * * *’’ from the Price 

Reductions Clause. The commenter 

suggested that this language be deleted 

because it is not feasible or realistic to 

require the contractor to make a revised 

price available to the Government with 

the ‘‘same effective date’’ as for the 

tracking customer. 

Response: The team reviewed the 

comment and does not concur. GSAR 

552.238–75 delineates as to the time 

period during which an FSS price 

reduction is required to be effective. It 

states that ‘‘the contractor shall offer the 

price reduction to the Government with 

the same effective date, and for the same 

time period, as extended to the 

commercial customer (or category of 

customers).’’ Thus, no change is 

warranted. 

The 21st commenter suggested that 

the GSAR be clarified to require that the 

parties express the relationship in the 

basis of award as a specific percentage 

or ratio, or any other objective 

measurement. 

Response: The team concurs with this 

comment and has added new verbiage 

to GSAR 538.1506–2, Price Negotiation 

Memorandum, which clarifies the 

relationship of the parties in terms of a 

percentage or ratio. 

The 22nd commenter stated that GSA 

sometimes requests commercial sales 

practices information from 

manufacturers of GSA resellers 

regardless of whether the reseller has 

significant sales to the general public, in 

an attempt to ascertain whether the 

reseller’s proposed prices are fair and 

reasonable. Further, the commenter 

stated that, if the reseller has significant 

sales, the need for its manufacturer’s 

sales information is negated. In this 

case, the commenter suggested that such 

requests for pricing information should 

be limited to pricing or other than cost 

and pricing information as provided by 

the reseller, who already has an existing 

competitive commercial sales practice. 

In the event that the reseller does not 

have significant commercial sales or 

otherwise lacks relevant pricing 

information, GSA may request other 

information from the reseller, such as 

the reseller’s cost basis from the 

manufacturer, pricing information 

available under other GSA Schedules, or 

sales by other resellers of the 

manufacturer’s products. Requiring 

pricing information from manufacturers 

is unnecessary and a source of 

considerable confusion within GSA and 

industry. 

Response: The team concurs with the 

commenter’s scenarios in regard to 

resellers as offerors under the Federal 

Supply Schedule Program. If a reseller 

has significant sales to the general 

public for products and/or services 

being proposed by manufacturers which 

are represented by the resellers they 

represent, then they should follow the 

instructions provided in the CSP–1 with 

an established catalog price list. For 

resellers that do not have significant 

sales to the general public, the 

manufacturer’s data shall be submitted 

in connection with the offer as 

documentation to support the 

contracting officer’s determination of 

price reasonableness. 

The 23rd commenter suggests that 

GSA consider changing the way it 

administers the updates to the Federal 

Supply Schedules. Furthermore, the 

commenter suggests that the process is 

administratively burdensome for 

Schedule contractors and GSA 

contracting officers alike, and can create 

considerable confusion concerning 

which set of terms applies to a 

particular task or delivery order. 

Response: The team empathizes with 

the commenter; however, the FSS 

Program is constantly evolving. As new 

products and services are introduced as 

well as changes to any terms and 

conditions, the Government reserves the 

right to provide state-of-the-art 

technology to the end user. Therefore, 

spontaneous ‘‘refreshment’’ of 

solicitation and/or contract terms and 

conditions are inevitable and part of the 

acquisition process. 

The 24th commenter focused on 

section C.32 of the contract and GSAR 

552.246–73 (WARRANTY—MULTIPLE 

AWARD SCHEDULE (Mar 2000) 

(Alternate I—May 2003)) as outlined in 

the Schedule 70 Solicitation. The 

commenter suggested that FAR 52.246– 

4 and FAR 52.246–6 are redundant with 

paragraph (a) of FAR 52.212–4. 

Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 4599 

Response: The team concurs with the 

commenter that the aforementioned 

clauses conflict, and that they should 

not be used in Schedule acquisitions. 

Adequate coverage can be found in FAR 

52.212–4 (Alternate I). 

Second, the commenter suggested that 

GSAR 552.246–73, which invites 

contractors to offer their commercial 

warranties to address post-acceptance 

remedies, conflicts with the final 

sentence of paragraph (a) of 52.212–4. 

Response: The team concurs with this 

comment and believes that Schedule 

acquisitions should follow the 

procedures as outlined in FAR Part 12, 

Commercial Acquisitions, and GSAM 

Part 512, Acquisition of Commercial 

Items. 

Third, the commenter suggested that 

FAR 52.232–23 incorporated by 

reference and GSAR 552.232–23 should 

be removed because they conflict with 

FAR 52.212–4(b). 

Response: The team concurs with this 

comment because commercial 

acquisitions should use commercial 

terms and conditions as outlined in FAR 

Part 12, Commercial Acquisitions, and 

GSAM Part 512—Acquisition of 

Commercial Items. 

Fourth, this commenter focused on 

the ‘‘Changes Clause’’ at FAR 52.212– 

4(c). Paragraph (c) of this clause does 

not make clear whether changes to the 

contract may be agreed to by an ordering 

activity and the contractor for purposes 

of a particular order. 

Response: The team does not concur 

with this comment. Subparagraph (c) 

indicates that all changes to the contract 

must be made only by written 

agreement between the parties. 

Commercial practices should be 

considered for incorporation into the 

solicitation/contract in accordance with 

FAR 12.213. If so indicated by market 

research that the aforementioned is 

appropriate for the acquisition of the 

particular item, an ordering activity may 

add additional terms and conditions to 

the order as long as the terms and 

conditions do not conflict with the base 

contract, as long as it is not precluded 

by law or executive order. Therefore, 

this requirement flows down to the task 

order level. 

The 25th commenter is concerned 

about excusable delays, more 

specifically, GSA’s change to paragraph 

(f) of FAR 52.212–4 by substituting the 

words ‘‘ordering activity’’ for 

‘‘Government’’ in the standard FAR 

version. Although this change is 

appropriate in other areas of the clause, 

it is not appropriate to describe force 

majeure events. Typically, a force 

majeure clause recognizes that a 

superseding event could arise from any 

part of the Government rather than 

solely from the ordering activity. 

Further, the commenter stated that the 

clause might be read to create automatic 

liability for default of the entire contract 

for a nonperformance event with a 

single order. 

Response: After careful review of this 

comment, the team was unable to 

clearly ascertain the rationale. It appears 

that GSA changed the text as mentioned 

above; however, without supporting 

documentation, the team could not 

provide a substantive response. ‘‘The 

standard FAR text of paragraph (f) of 

52.212–4 contains the word 

‘‘Government.’’ Based on the comment, 

it appears that GSA deviated from this 

verbiage and substituted ‘‘ordering 

activity.’’ The team’s interpretation of 

this comment is that the change was 

made to accommodate cooperative and 

recovery purchasing. The rationale is 

that a force majeure event can only be 

determined at the order level and would 

only apply to that order. It does not 

apply to the entire Schedule contract. 

The 26th commenter was concerned 

about contract invoicing. The 

commenter suggested that the 

unlabelled paragraph after (g)(1), but 

before (g)(2), of GSA’s deviation to FAR 

52.212–4 addresses electronic funds 

transfer. FAR 52.232–33 (PAYMENT BY 

ELECTRONIC FUNDS TRANSFER— 

CENTRAL CONTRACTOR 

REGISTRATION (Oct 2003)) should be 

integrated within this portion of the 

clause to simplify the contract. The 

commenter recommended deleting FAR 

52.232–33 and changing the relevant 

section of FAR 52.212–4 to more 

assertively and clearly incorporate FAR 

52.232–33, unless an ordering activity 

indicates otherwise. Additionally, 

paragraph (d) of GSAR 552.232–74 

(INVOICE PAYMENTS (Sep 1999)) 

changes the requirement in FAR 

52.212–4(g)(1) from having to provide 

three copies of the invoice to having to 

provide only one original invoice. 

Response: The team concurs with the 

comment and agrees that FAR 52.232– 

33 should not be included in MAS 

solicitations because FAR 52.212–4 

contains the appropriate invoicing 

information. The issue of the number of 

copies of invoices required is outside 

the scope of this part. 

The 27th commenter was concerned 

about risk of loss. The commenter 

recommends that GSA consider whether 

the various delivery and packaging 

requirements can be simplified to 

clearly require delivery and packaging 

that comports with the contractor’s 

standard commercial practices. 

Response: The team concurs that the 

delivery requirements should be 

simplified. As such, the team 

determined that GSAR 552.211–75 and 

GSAR 552.211–77 are not applicable 

under the MAS. However, the team 

believes that the MAS should include 

GSAR 552.211–78, which was deleted 

from GSAM Part 511 and added to this 

part. 

The 28th commenter stated that FAR 

clauses 52.229–1 (State and Local Taxes 

(Apr 1984) (Deviation—May 2003)), 

52.229–3 (Federal, State, and Local 

Taxes (Apr 2003) (Deviation—May 

2003)), 52.229–5 (Taxes—Contracts 

Performed in U.S. Possessions or Puerto 

Rico (Apr 1984)), and 52.229–71 

(Federal Excise Tax—DC Government 

(Sep 1999)) appear to be in conflict. 

Response: The team, believes, 

however that a careful reading of the 

language makes clear GSA’s apparent 

intent to exclude all applicable Federal, 

State, and local taxes and duties, except 

after imposed or relieved Federal taxes. 

Additionally, FAR 52.229–71, which is 

incorporated into the contract in section 

C.2 of the contract, is not reflected in 

current regulations. The team concurs 

that FAR 52.212–4(k) should not be 

modified. However, FAR 52.212–5 still 

remains a viable clause in the FSS 

program. Additionally, FAR 52.229–71 

was cited incorrectly and should be 

noted as GSAR 552.229–71 (Federal 

Excise Tax—DC Government). This 

clause will remain as an incorporated by 

reference clause under GSAR 552.212– 

71. 

The 29th commenter suggested that 

GSA establish a central location for all 

contract clauses that it includes in FSS 

and GWAC contracts. The commenter’s 

concern is that there is no single 

publication, Web site, or other resource 

where all of the different types of 

contract clauses can be reviewed. 

Publishing all of them in a central 

location, according to the commenter, 

will make the contract formation 

process more transparent and 

administratively less burdensome. 

Response: The team concurs with this 

comment. The GSA’s rewrite of the 

GSAM will accomplish this feat by 

relocating all of the FSS’s clauses and 

provisions from its current clause 

manual to GSAM Part 538. This is 

inclusive of other FSS clauses and 

provisions that are currently found in 

other GSAM parts. Consequently, this 

will bring consistency to the program, 

providing a one-stop approach to FSS 

policy and guidance. 

The 30th commenter suggested 

revisions to the GSAR to make it more 

consistent with the FAR and to 

eliminate inconsistencies and 

redundancies between the FAR and 

GSAR. Specifically, the commenter 

4600 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 

focused on FAR clauses 52.246–4 

(Inspection of Services—Fixed Price 

(Aug 1996) (Deviation—May 2003)) and 

52.246–6 (Inspection-Time and Material 

and Labor-Hour (May 2001) 

(Deviation—May 2003)) as well as 

GSAR clause 552.246–73 (Warranty— 

Multiple Award Schedule (Mar 2000) 

(Alternate I—May 2003)). The 

commenter noted that the 

aforementioned clauses conflict and are 

redundant with paragraph (a) of FAR 

52.212–4. Moreover, GSAR 552.246–73, 

which invites contractors to offer their 

commercial warranties to address postacceptance remedies, according to the 

commenter, conflicts with the final 

sentence of paragraph (a) of FAR 

52.212–4. The commenter suggested 

that the clauses be reconciled or deleted 

to the extent that they are redundant. As 

such, paragraph (a) could be limited in 

application to products under particular 

Special Identification Numbers (SINs)— 

as opposed to services—to easily 

alleviate the patent conflict between the 

FAR clauses as to the inspection and 

acceptance of services. Also, the final 

sentence of paragraph (a) should be 

changed to reference the post 

acceptance rights contemplated under 

the contractor’s commercial warranty 

pursuant to GSAR 552.246–73. A 

suggested change might read as follows: 

‘‘The ordering activity must exercise 

any post acceptance rights pursuant to 

contractor’s commercial warranty 

incorporated into this contract under 

C.32. If no such commercial warranty is 

incorporated, then the ordering activity 

must exercise its post acceptance rights 

(1) within a reasonable time after the 

defect was discovered or should have 

been discovered; and (2) before any 

substantial change occurs in the 

condition of the item, unless the change 

is due to the defect in the item.’’ 

Alternatively, the commenter believes 

that the final sentence of paragraph (a) 

should be deleted altogether as the post 

acceptance rights to which it refers are 

unclear. 

Response: The team partially concurs 

with this comment. An attempt to revise 

paragraph (a) of FAR 52.212–4 would 

require a FAR Case and consensus from 

the Department of Defense (DoD) and 

Civilian agencies. This is outside the 

scope of this part. However, GSAR 

552.246–73 is sufficient in 

supplementing the FAR because it 

provides policy regarding placement of 

the burden of defective items on the 

contractor for a specific timeframe (90 

days) as opposed to FAR 52.212–4(a) 

which states ‘‘within a reasonable 

time.’’ This is inclusive of 

transportation to and from site as well 

as onsite repair. 

The 31st commenter raised a concern 

about GSAR 552.232–23 (Assignment of 

Claims (Sep 1999)) conflicting with and 

supplementing paragraph (b) of FAR 

52.232–23. The GSAR at 552.232–23 

incorporates FAR 52.232–23, but 

whereas FAR 52.232–23 permits 

assignment of any amount under the 

contract to a bank, trust company or 

financial institution, GSAR 552.232–23 

changes the first paragraph of FAR 

52.232–23 to permit assignment of 

amounts due under any order of $1000 

or more. Although the GSAR clause 

refers to the indefinite delivery/ 

indefinite quantity nature of the GSA 

Schedule Contract as a rationale, it is 

unclear if the $1000 limitation remains 

relevant today; the vast majority of 

orders are well above $1000. The change 

in nomenclature between the contract 

and order is appropriate and provides 

the parties more flexibility than a 

reference to the entire GSA Schedule 

Contract might. The recommendation 

here is that section C.21 of the contract 

should be deleted and paragraph (b) of 

FAR 52.232–23 should be changed to 

conform to the order concept. The 

GSAR clause 552.232–23, including the 

$1000 limitation, should be eliminated. 

Thus, FAR paragraph 52.232–23(b) 

might read: ‘‘The Contractor or its 

assignee may assign its rights to receive 

payment due as a result of performance 

of this contract, or any order hereunder, 

to a bank, trust company, or other 

financing institution, including any 

Federal lending agency in accordance 

with the Assignment of Claims Act (31 

U.S.C. 3727).’’ Nevertheless, when a 

third party makes payment (e.g., use of 

a credit card), the contractor may not 

assign its rights to receive payment 

under this contract. 

Response: The team does not concur 

with this comment. The $1000 

limitation would not apply to most 

orders, but still remains relevant when 

purchasing office supplies under the 

program. Further, the recommendation 

that section C.21 of the contract should 

be deleted and that paragraph (b) of FAR 

52.232–23 be changed to conform to the 

order concept is outside the scope of 

this part. This would require a 

collaborative decision between DoD and 

GSA at the FAR level. 

The 32nd commenter noted that, on 

the topic of Termination for the 

Ordering Activity’s Convenience, the 

clause is ambiguous due to the use of 

the word ‘‘hereof.’’ The commenter is 

concerned that it could be read to 

suggest that the ordering activity has the 

ability to terminate the underlying GSA 

Schedule contract, rather than merely 

the order. Thus, the commenter’s 

recommendation is that the first 

sentence should be clarified, consistent 

with GSA’s intent, to refer to an ‘‘order’’ 

rather than the GSA Schedule Contract, 

by changing the terms ‘‘hereof’’ to 

‘‘thereof’’ and ‘‘hereunder’’ to 

‘‘thereunder.’’ 

Response: The team partially concurs 

with this comment. Though the change 

in verbiage would adequately 

distinguish ‘‘contract’’ from ‘‘order,’’ 

this change is outside the scope of this 

part. It would require a collaborative 

decision between DoD and GSA at the 

FAR level. 

The 33rd commenter focused on FAR 

52.212–4(m) addressing the topic of 

Termination for cause, particularly 

GSAR clause section C.34 contract 

Default (I–FSS–249–B) (May 2000). The 

commenter is concerned that the use of 

the word ‘‘hereof’’ in this clause is 

somewhat ambiguous with regard to the 

ordering activity’s ability to terminate 

the underlying GSA Schedule Contract, 

rather than merely the order. The 

commenter’s suggestion is that the first 

sentence should be clarified so as to be 

consistent with GSA’s intent by 

referring to an ‘‘order’’ rather than the 

GSA Schedule Contract and by changing 

the word ‘‘hereof’’ to ‘‘thereof.’’ 

Response: The team partially concurs 

with this comment. Though the change 

in verbiage would adequately 

distinguish ‘‘contract’’ from ‘‘order,’’ 

this change is outside the scope of this 

part. It would require a collaborative 

decision between DoD and GSA at the 

FAR level. 

The 34th commenter focused on FAR 

52.212–4(p) addressing Limitation of 

Liability. Of particular note was GSA’s 

deviation to paragraph (p) which does 

not permit an exclusion of 

consequential damages for implied 

warranty claims. As the commenter 

notes, the FAR version of this clause 

does not include the language ‘‘or 

implied warranty’’ in the first sentence 

of the clause, thereby excluding 

consequential damages from implied 

warranty claims. 

Further, the commenter believes that 

there does not seem to be any reason for 

GSA’s different approach, particularly 

because most companies exclude all 

implied warranties in their commercial 

warranty provisions—exclusions that 

GSA presumably accepts under GSAR 

552.246–73, which, as explained above, 

invited the contractor to provide its 

commercial warranty. The commenter’s 

recommendation is that the clause 

should at least revert to the standard 

paragraph (p) at FAR 52.212–4—GSA’s 

deviation does not make sense in the 

context of GSAR 552.246–73. Moreover, 

Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 4601 

as suggested previously by the section, 

the limitation of the exclusion of 

consequential damages to only defects 

or deficiencies in accepted items 

provides a gap in coverage for 

unaccepted items, which is inconsistent 

with commercial practice and prior 

versions of the clause. 

Response: The team proposes 

maintaining clauses at FAR 52.212–4(p) 

and GSAR 552.246–73; they include the 

standard commercial warranty. A 

deviation is not necessary. 

The 35th commenter seeks 

clarification of the application of the 

Buy American Act (BAA) and the Trade 

Agreements Act (TAA). The commenter 

is concerned that contractors receive 

consistent treatment under the law and 

applicable regulations. Knowing when 

the BAA and TAA apply and how their 

respective tests will be applied to 

products or services is of great 

importance to contractors. Contractors 

selling commercial items to the Federal 

Government generally do not 

manufacture their products based on the 

origin of supplies or manufacturing 

location. The Government, however, 

requires such contractors to consider 

these things when they contract to sell 

commercial products to the Federal 

Government. Making it easier for 

contractors to know and understand 

how the rules will be applied can only 

improve the procurement system. This 

is particularly important because an 

inaccurate certification can result in loss 

of monies, contracts, serious civil and 

criminal penalties, or both. The 

commenter feels that there is 

uncertainty as to whether the BAA or 

TAA applies to a procurement. The 

TAA dollar-value applicability 

threshold, which is set out in FAR 

25.402, can vary according to whether 

the country of origin is a Free Trade 

Agreement (FTA) country and whether 

the contract is for supplies, services, or 

construction. Generally, the BAA 

applies to contracts below the 

applicable TAA threshold, and the TAA 

waives application of the BAA to 

contracts at or above the applicable 

TAA threshold. But it is unclear 

whether the TAA threshold applies to 

the total contract value, the individual 

Contract Line Item value, or the delivery 

or task order value. FAR 25.402(b) and 

25.403(b) identify the TAA and FTA 

thresholds and how they ought to apply 

to specific types of contracts, but it is 

the commenter’s understanding that 

contracting officers routinely (and 

perhaps not reasonably) interpret these 

provisions differently. Is it GSA’s belief 

that the TAA applies to each order 

regardless of order amount and what is 

the reason for this belief? 

Response: The team agrees that the 

TAA and BAA apply to the total value 

of the contract, regardless of individual 

order value. Specifically, as identified 

in FAR 25.403(b)(3), if, in any 12-month 

period, recurring or multiple awards for 

the same type of product or products are 

anticipated, the contracting officer is to 

use the total estimated value of these 

projected awards to determine whether 

the World Trade Organization (WTO), 

Government Procurement Agreement 

(GPA) or an FTA applies. Acquisitions 

should not be divided with the intent of 

reducing the estimated value of the 

acquisition below the dollar threshold 

of the WTO, GPA or an FTA. 

The 36th commenter was concerned 

about Alternate I of GSAR clause 

552.232–77 (Payment by 

Governmentwide Commercial Purchase 

Card), and GSAR clause 552.232–79 

(Payment by Credit Card) and their 

impact on small businesses. The 

commenter states that, with the 

exception of FSS Schedule 70 

(Information Technology) contracts, 

GSAR 532.7003 requires contracting 

officers to insert Alternate I of the clause 

at GSAR 552.232–77 in FSS schedule 

solicitations and contracts. Moreover, 

for FSS Schedule 70 solicitations and 

contracts, GSAR 532.7003 requires 

contracting officers to include clause 

552.232–79. The GSAR clause at 

552.232–77, without Alternate I, permits 

government orders using the 

Governmentwide commercial purchase 

card if agreeable to the contractor. 

Alternate I of that clause, however, 

provides that the FSS contractor must 

accept the Governmentwide commercial 

purchase card for payments equal to or 

less than the micro-purchase threshold 

($2500). Likewise, clause 552.232–79 

provides that Schedule 70 contractors 

must accept credit card orders 

(including the Governmentwide 

commercial purchase card) for 

payments equal to or less than the 

micro-purchase threshold. 

Consequently, the commenter felt that 

this mandate may be problematic for 

some companies. Through reports, it 

was outlined that credit card companies 

do not permit companies participating 

in their programs to discriminate by 

accepting their cards from some 

customers and not others. Consequently, 

the requirement contained in Alternate 

I of GSAR 552.232–77 and in GSAR 

552.232–79 for contractors to accept 

Government payment by the 

Governmentwide commercial purchase 

card may have the effect of compelling 

these contractors to accept credit card 

payments from all commercial 

customers as well. Therefore, the 

commenter recommends that GSA 

examine the current requirement in 

Alternate I of the clause to determine its 

impact and the burden it poses for 

contractors and potential contractors, 

especially small businesses that have 

chosen not to accept payment by credit 

card from their commercial customers 

in order to avoid the fees charged by the 

credit card companies. 

Response: The team does not concur 

with this comment. Under GSAR Clause 

552.232–77, Alternate I, GSA mandates 

that the Contractor must accept use of 

the Governmentwide commercial credit 

card for payments equal to or less than 

the micro-purchase threshold as part of 

the FSS program. This mandate 

leverages the streamlined and more 

efficient transaction process use of the 

credit card. Offerors should consider 

this mandate before submitting an offer 

under the FSS program. The clause has 

been a final rule since March 2, 2000, 

and does not seem to have adversely 

impacted the number of small 

businesses under the FSS Program, as 

nearly 80 percent of FSS contractors are 

small business. According to the GSA 

purchase card Web site, the Government 

saves on administrative processing costs 

by using the purchase card rather than 

traditional purchase orders. Further, use 

of the purchase card ensures timely 

payment to merchants who do business 

with the Federal Government. 

Merchants are paid for credit card 

transactions within 48 hours of 

submitting the transaction to the card 

network. This is a vast improvement to 

the lengthy invoicing and payment 

process without cards and improves 

cash flow to merchants most in need, 

especially small businesses. However, 

the team is currently coordinating with 

the GSA Purchase Card office to track 

any issues and/or concerns that may 

have arisen based on current 

requirements. 

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 changes may 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 

proposed rule will implement a number 

of provisions and clauses that are the 

same provisions and clauses currently 

in use in FSS solicitations and 

contracts. However, the provisions and 

clauses have never been vetted to the 

4602 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 

public for comment, and must be 

approved by the Office of Management 

and Budget under the Paperwork 

Reduction Act. 

An Initial Regulatory Flexibility 

Analysis (IRFA) has been prepared. The 

analysis is summarized as follows: 

This Initial Regulatory Flexibility Analysis 

has been prepared consistent with the criteria 

of 5 U.S.C. 604. 

1. Description of the reasons why action by 

the agency is being considered. 

GSAM coverage in Part 538 does not 

currently include internal policy and 

guidance issued in other forms such as 

Acquisition Letters, Procurement Information 

Bulletins (PIBs), Procurement Information 

Notices (PINs), Instructional Letters and the 

Supply Operations Handbook (FAS P 

2901.2A). This internal FSS guidance has 

never been fully vetted to the regulatory level 

for analysis, thereby bringing about conflict 

and overlap within the Program. Therefore, 

under conventions of the General Services 

Administration’s (GSA) rewrite of the 

General Services Administration Manual 

(GSAM), the rule proposes to implement this 

policy and guidance for the Federal Supply 

Schedule (FSS) Program. 

2. Succinct statement of the objectives of, 

and legal basis for, the proposed rule. 

The objective of the proposed rule is to 

implement policy and guidance currently 

used in Federal Supply Schedule 

solicitations and contracts. Essentially, the 

goal of the new rule is to make the process 

more efficient by reducing duplication of 

effort and to ensure currency and consistency 

within the program for the acquisition of 

supplies and services. 

3. Description of, and where feasible, 

estimate of the number of small entities to 

which the proposed rule will apply. 

The proposed rule will affect large and 

small businesses, which are awarded GSA 

FSS contracts. The Program contains over 

17,000 long-term governmentwide contracts 

with commercial firms that provide over 11 

million supplies and services. Approximately 

eighty-one percent (13,770) of GSA FSS 

contracts are small businesses. Over $13 

billion (37 percent) of sales under the 

Program in FY07 went to small businesses, 

which is well above the 23 percent 

governmentwide goal. There are a total of 39 

Schedules, with 17 possessing an array of 

Special Item Numbers (SINs) set-aside for 

small businesses. Overall, small businesses 

have benefited from GSA providing 

education and access to the Federal 

marketplace via the Pre-award phase 

(Pathway to Success), the Post-award phase 

(New Contractor Orientation), and Contractor 

Assistance Visits (CAVs). Additionally, this 

proposed rule contains changes such as the 

addition of a Commercial Sales Practices 

Format for Supplies/Services without an 

Established Catalog Price, which will assist 

in facilitating ease-of-use in the preparation 

of offers from prospective Contractors, 

inclusive of small business concerns. FSS 

contracts are negotiated as volume purchase 

agreements, with generally very favorable 

pricing. The ability of small businesses to be 

awarded under the FSS Program has enabled 

them to grow in the Federal marketplace as 

well as realize significant cost savings. 

4. Description of projected reporting, 

recordkeeping, and other compliance 

requirements of the proposed rule, including 

an estimate of the classes of small entities 

that will be subject to the requirement and 

the type of professional skills necessary for 

preparation of the report or record. 

This rule will not pose 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 proposed rule will 

implement a number of provisions/clauses 

that are the same provisions/clauses 

currently in use in FSS solicitations and 

contracts. However, the provisions/clauses 

have never been vetted to the public for 

comment, and must be approved by the 

Office of Management and Budget under the 

Paperwork Reduction Act. 

5. Identification, to the extent practicable, 

of all relevant Federal rules that may 

duplicate, overlap or conflict with the 

proposed rule. 

The proposed rule when finalized does not 

duplicate, overlap, or conflict with any other 

Federal rules. 

6. Description of any significant 

alternatives to the proposed rule that 

accomplish the stated objectives of 

applicable statutes and that minimize any 

significant economic impact of the proposed 

rule on small entities. 

There are no practical alternatives that will 

accomplish the objective of this rule. 

The Regulatory Secretariat has 

submitted 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. The GSA will 

consider comments from small entities 

concerning the affected GSAR part 538 

in accordance with 5 U.S.C. 610. 

Comments must be submitted separately 

and should cite 5 U.S.C 601, et seq. 

(GSAR Case 2006–G507), in 

correspondence. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.) addresses the 

collection of information by the Federal 

government from individuals, small 

businesses and state and local 

governments and seeks to minimize the 

burdens such information collection 

requirements might impose. A 

collection of information includes 

providing answers to identical questions 

posed to, or identical reporting or 

recordkeeping requirements imposed on 

ten or more persons, other than 

agencies, instrumentalities, or 

employees of the United States. In 

accordance with the requirements of the 

Paperwork Reduction Act, agencies may 

not conduct or sponsor, and the 

respondent is not required to respond 

to, an information collection unless it 

displays a currently valid Office of 

Management and Budget (OMB) control 

number. 

The Paperwork Reduction Act does 

apply; however, these changes to the 

GSAR do not impose additional 

information collection requirements to 

the paperwork burden previously 

approved under OMB Control Numbers 

3090–0243 (GSAR 552.216–70), 3090– 

0250 (GSAR 552.238–70 and 552.238– 

74), 3090–0262 (GSAR 552.238–72), 

3090–0121 (GSAR 552.238–75), and 

3090–0204 (GSAR 552.211–78). 

However, GSA is requesting 

comments on a proposed information 

collection. The proposed information 

collection is representative of required 

process of Federal Supply Schedule 

(FSS) solicitations in order to negotiate 

and award contracts. Offerors submit 

solicitations either by hard copy or 

electronically through GSA’s eOffer 

system at http://www.gsa.gov/eoffer. 

The Regulatory Secretariat will 

submit a request for approval of a new 

information collection requirement 

concerning Federal Supply Schedule 

Contracting to the Office of Management 

and Budget under 44 U.S.C. 3501, et 

seq. 

Annual Reporting Burden 

552.238–10—Additional Offer 

Submission Instructions (Federal 

Supply Schedules) (SCP–FSS–001), 

552.238–11—Additional Evaluation 

Factors for Award of Services (CI–FSS– 

151), and 552.238–90—Dealers and 

Suppliers (I–FSS–644). The burden for 

the three clauses is combined, thereby 

constituting a total of 8 burden hours 

collectively. FSS Offerors are at liberty 

to submit offers for both supplies and 

services, which may be inclusive of 

acting as a Dealer/Reseller. 

Number of Respondents: 4,000. 

Responses per Respondent: 1. 

Annual Responses: 4,000. 

Average Burden per Response: 8. 

Total Burden Hours: 32,000. 

Public reporting burden for this 

collection of information is estimated to 

average 8 hours per response, including 

the time for reviewing instructions, 

searching existing data sources, 

gathering and maintaining the data 

needed, and completing and reviewing 

the collection of information. 

552.238–65—Commercial Sales 

Practices Format—Supplies and/or 

Services with an Established Catalog 

Price (CSP–1) and 552.238–66— 

Commercial Sales Practices Format— 

Supplies and/or Services with Market 

Pricing Without an Established Catalog 

Price (CSP–2). 

Number of Respondents: 18,000. 

Responses per Respondent: 3.5. 

Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 4603 

Annual Responses: 63,000. 

Average Burden per Response: 5. 

Total Burden Hours: 315,000. 

Public reporting burden for this 

collection of information is estimated to 

average 5 hours per response, including 

the time for reviewing instructions, 

searching existing data sources, 

gathering and maintaining the data 

needed, and completing and reviewing 

the collection of information. 

552.238–71—Submission and 

Distribution of Authorized FSS 

Schedule Price Lists, 552.238–15— 

Contract Price Lists (I–FSS–600), 

552.238–61—Price Lists/Brochures for 

Non-Commercial Items (I–FSS–602), 

and 552.238–92—Dissemination of 

Information by Contractor (I–FSS–680). 

Number of Respondents: 18,000. 

Responses per Respondent: 3.5. 

Annual Responses: 63,000. 

Average Burden per Response: 5. 

Total Burden Hours: 315,000. 

Public reporting burden for this 

collection of information is estimated to 

average 5 hours per response, including 

the time for reviewing instructions, 

searching existing data sources, 

gathering and maintaining the data 

needed, and completing and reviewing 

the collection of information. 

552.238–58—GSA Advantage!® (I– 

FSS–597) and 552.238–59—Electronic 

Commerce-FACNET (I–FSS–599). 

Number of Respondents: 16,634. 

Responses per Respondent: 3.5. 

Annual Responses: 58,219. 

Average Burden per Response: 2. 

Total Burden Hours: 116,438. 

Public reporting burden for this 

collection of information is estimated to 

average 2 hours per response, including 

the time for reviewing instructions, 

searching existing data sources, 

gathering and maintaining the data 

needed, and completing and reviewing 

the collection of information. 

552.238–69, Economic Price 

Adjustment—Supplies and/or Services 

with Market Prices without an 

Established Catalog Price (I–FSS–969). 

Number of Respondents: 11,000. 

Responses per Respondent: 1. 

Annual Responses: 11,000. 

Average Burden per Response: 1. 

Total Burden Hours: 11,000. 

Public reporting burden for this 

collection of information is estimated to 

average 1 hour per response, including 

the time for reviewing instructions, 

searching existing data sources, 

gathering and maintaining the data 

needed, and completing and reviewing 

the collection of information. 

D. Request for Comments Regarding 

Paperwork Burden 

Submit comments, including 

suggestions for reducing this burden, 

not later than March 27, 2009 to: GSA 

Desk Officer, OMB, Room 10102, NEOB, 

Washington, DC 20503, and a copy to 

the General Services Administration, 

Regulatory Secretariat (VPR), 1800 F 

Street, NW., Room 4041, Washington, 

DC 20405. 

Public comments are particularly 

invited on: Whether this collection of 

information is necessary for the proper 

performance of functions of the GSAR, 

and will have practical utility; whether 

our estimate of the public burden of this 

collection of information is accurate, 

and based on valid assumptions and 

methodology; ways to enhance the 

quality, utility, and clarity of the 

information to be collected; and ways in 

which we can minimize the burden of 

the collection of information on those 

who are to respond, through the use of 

appropriate technological collection 

techniques or other forms of information 

technology. 

Requester may obtain a copy of the 

justification from the General Services 

Administration, Regulatory Secretariat 

(VPR), Room 4041, Washington, DC 

20405, telephone (202) 208–7312. Please 

cite OMB Control Number 3090–XXXX, 

GSAR 2006–G507, Federal Supply 

Schedule Contracting, in all 

correspondence. 

List of Subjects in 48 CFR Parts 538 and 

552 

Government procurement. 

Dated: January 6, 2009. 

Al Matera, 

Director, Office of Acquisition Policy. 

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 

Subpart 538.2 [Removed] 

2. Remove Subpart 538.2, consisting 

of sections 538.270 through 538.273. 

3. Add Subpart 538.9, consisting of 

section 538.906–3, to read as follows: 

Subpart 538.9—Contractor 

Qualifications 

Sec. 

538.906–3 Roles and Responsibilities of a 

contractor partnering arrangement. 

538.906–3 Roles and responsibilities of a 

contractor partnering arrangement. 

(a) The Contractor Partnering 

Arrangement document should outline 

all FSS partners. The lead partner is 

responsible for identifying FSS contract 

numbers, Contractor’s point-of-contact 

information, and information about 

what each partner is responsible for at 

each phase of the project. Each partner 

is responsible for the terms and 

conditions of its respective FSS 

contract, including any proposed unit 

prices or hourly rates. 

(b) The CPA is solely between or 

among the partners and cannot conflict 

with the underlying terms and 

conditions of each partner member’s 

Schedule contract. 

(c) Schedule Contractors are 

responsible for crafting the CPA 

document. The Government is not 

involved in this process. 

(d) The CPA document should 

acknowledge that any dispute involving 

the distribution of payment between the 

lead partner and the team members will 

be resolved by all partners, without any 

involvement by the Government. 

4. Add Subpart 538.12, consisting of 

section 538.1203, to read as follows: 

Subpart 538.12—Acquisition of 

Commercial Items—FSS 

Sec. 

538.1203 Solicitation provisions and 

contract clauses. 

538.1203 Solicitation provisions and 

contract clauses. 

(a) Multiple and single award 

schedules. The following provisions are 

required for all Federal Supply 

Schedules. As prescribed below, insert 

the following Cover Page language prior 

to the beginning of FSS solicitations: 

(1) 552.238–1, Cover Page for 

Worldwide Multiple Award Schedules 

(CP–FSS–1–C). This provision is for 

both supply and service solicitations. 

For supplies, complete the information 

required by this paragraph (a) and delete 

paragraph (b) of this section in its 

entirety. For services, complete the 

information required by paragraph (b) 

and delete (a) in its entirety. For 

solicitations containing both supplies 

and services, complete paragraphs (a) 

and (b). 

(2) 552.238–2, Significant Changes 

(CP–FSS–2). This provision outlines to 

Offerors the most recent solicitation 

revisions since its previous posting to 

the Government’s point of entry. 

(3) 552.238–3, Pricing (CP–FSS–19). 

This provision notifies Offerors that 

separate pricing may be submitted for 

different countries, if offered 

commercially. 

(4) 552.238–4, Notice of Total Small 

Business Set-Aside (A–FSS–31). This 

provision notifies small business 

4604 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 

Offerors which Special Item Numbers 

(SINs) are set-aside. 

(5) 552.238–5, Information Collection 

Requirements and Hours of Operation 

(A–FSS–41). This provision informs 

Offerors that only required regulations 

are contained in the solicitation and the 

hours of operation. 

(6) 552.238–6, Notice: Requests for 

Explanation or Information (CP–FSS–3). 

This provision contains the contact 

information to address questions 

regarding the solicitation. 

(b) Multiple and single award 

Schedules. As prescribed below, insert 

the following provisions as an 

addendum to 52.212–1, Instructions to 

Offerors—Commercial Items, in 

solicitations issued under FSS, when 

applicable: 

(1) 552.238–7, Estimated Sales (B– 

FSS–96). This provision instructs 

Offerors to provide the estimated annual 

sales anticipated under the Schedule. 

(2) 552.238–8, Consideration of Offers 

Under Standing Solicitation (A–FSS– 

11). This provision outlines to Offerors 

the Government’s contemplation of 

awards under a standing solicitation. 

(3) 552.238–9, Period for Acceptance 

of Offers (A–FSS–12–C). This provision 

instructs the Offeror to insert the 

number of days that the offered pricing 

is firm. 

(4) 552.238–10, Additional Offer 

Submission Instructions (Federal 

Supply Schedules) (SCP–FSS–001). 

This provision clarifies how to submit 

solicitation responses. 

(5) 552.238–11, Additional Evaluation 

Factors for Award of Services (I–FSS– 

151). This provision provides 

clarification to Offerors on how 

solicitation responses for services will 

be evaluated. 

(6) 552.238–12, Submission of 

Offers—Additional Instructions (CI– 

FSS–002). This provision outlines to 

Offerors additional instructions on how 

to submit an offer under the Schedules 

Program. 

(7) 552.238–13, Impact of Mandatory 

Use on Quantities Ordered (B–FSS–97). 

In conjunction with clause 552.238–51, 

Scope of Contract (I–FSS–102), this 

provision requires that this contract is 

the first instance where GSA is the only 

agency listed as a mandatory user. This 

provision does not apply to the 

Department of Veterans Affairs. 

(8) 552.238–14, Introduction of New 

Supplies/Services (INSS) (L–FSS–400). 

This provision is for use when 

establishing new services or supplies. 

(9) 552.238–15, Contract Price Lists 

(I–FSS–600). This provision provides 

instructions to Offerors on how to create 

the Authorized FSS Schedule Price List. 

For Schedule 70, use Alternate I. 

(10) 552.238–16, Ordering 

Information (Federal Supply 

Schedules). This provision outlines how 

Offerors will accept orders placed 

against the contract. 

(11) 552.238–17, Contractor’s 

Remittance (Payment) Address. This 

provision instructs the Offeror on how 

to insert its remittance/payment 

address. 

(12) 552.238–18, Final Proposal 

Revision (L–FSS–101). This provision 

provides instructions to Offerors on how 

to prepare and submit a Final Proposal 

Revision (FPR) letter. 

(13) 552.238–19, Use of NonGovernment Employees to Review 

Offers. This provision provides 

notification to Offerors that nongovernment employees may be utilized 

to review their solicitation response. 

(14) 552.238–20, Authorized 

Negotiators (K–FSS–1). This provision 

provides for the Offeror to outline its 

point-of-contact information for 

negotiations. 

(c) Multiple and single award 

schedules. As prescribed below, insert 

the following clauses as an addendum 

to clause 52.212–4, Contract Terms and 

Conditions—Commercial Items, in 

solicitations and contracts issued under 

FSS, when applicable: 

(1) 552.238–21, Authentication 

Supplies and Services (CI–FSS–52). 

This clause is to be used with Schedule 

70 only and specifically corresponds to 

those Special Item Numbers (SINs) 

associated with the Homeland Security 

Presidential Directive-12 (HSPD–12). 

(2) 552.238–22, Indemnification and 

Liability (CI–FSS–053). This clause is to 

be used to protect the interest of the 

Government for loss or damage or 

anticipated loss for services related to 

hazardous substances or waste. 

(3) 552.238–23, Organizational 

Conflicts of Interest (CI–FSS–054). This 

clause is to be used when the nature of 

the work to be performed under a 

proposed ordering activity contract may 

either 

(i) Result in an unfair competitive 

advantage to the Contractor or its 

affiliates; or 

(ii) Impair the Contractor or its 

affiliates’ objectively in performing 

contract work. 

(4) 552.238–24, Section 508 

Compliance (CI–FSS–056). This clause 

instructs the Contractor to insert its Web 

site in a location where ordering 

activities can verify the 508 compliance 

for specific items. 

(5) 552.238–25, Characteristics of 

Electric Current (C–FSS–412). This 

clause is used for overseas orders when 

Contractors are supplying equipment 

which uses electrical current. 

(6) 552.238–26, Separate Charge for 

Performance Oriented Packaging (POP) 

(D–FSS–447). This clause is to be used 

when the Offeror is requested to quote 

a separate charge for preservation, 

packaging, packing and marking and 

labeling of domestic and overseas 

HAZMAT SURFACE SHIPMENTS. 

(7) 552.238–27, Special Packing (D– 

FSS–464). This clause instructs bidders 

to specify additional charges for 

preservation, packaging, and packing 

when other than the commercial 

standard is used. 

(8) 552.238–28, Export Packing (D– 

FSS–465). This clause instructs Offerors 

to quote in their price lists 

accompanying their offer (or by separate 

attachment), additional charges or net 

prices covering delivery of the items 

furnished with commercial and/or 

Government export packing. This clause 

only applies to Schedule 70 for 

Information Technology. 

(9) 552.238–29, Marking and 

Documentation Requirements Per 

Shipment (D–FSS–471). This clause is 

used when outlining the minimum 

information and documentation 

required for shipment. 

(10) 552.238–30, Inspection (E–FSS– 

521–D). This clause is for use when all 

items are to be inspected at a 

destination by a Government 

representative. 

(11) 552.238–31, Emergency/ 

Expedited Delivery (CI–FSS–051). This 

applies to Schedule 51 V only, and is to 

be used when delivery terms and 

conditions deviate from normal delivery 

practices. 

(12) 552.238–32, Delivery Prices (F– 

FSS–202–G). This clause is for use in 

Indefinite Delivery/Indefinite Quantity 

contracts and describes delivery terms 

and conditions for the 48 Contiguous 

States and Washington, DC as well as 

additional destinations. 

(13) 552.238–33, Additional Service 

Charge for Delivery Within Consignee’s 

Premises (F–FSS–244–B). This clause is 

for use when the Contractor charges a 

separate cost for each shipping 

container to be shipped (inclusive of 

items that are comparable in size and 

weight). 

(14) 552.238–34, Additional Service 

Charge for Delivery Within Consignee’s 

Premises (Specification for Inside 

Delivery) (F–FSS–244–C). This clause is 

applicable to furniture acquisitions only 

and is to be used in accordance with 

FAR 52.247–35 when an additional 

charge is necessary beyond F.O.B 

Destination within Consignee’s 

Premises. 

(15) 552.238–35, Shipping Points (F– 

FSS–712–B). This clause instructs the 

Offeror to provide shipping information, 

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inclusive of carrier and address, for 

F.O.B. Origin shipments. 

(16) 552.238–36, Contact for Contract 

Administration (G–FSS–900–C). This 

clause instructs Offerors to provide 

points of contact for domestic and/or 

overseas contact information for 

contract administration. 

(17) 552.238–37, Vendor Managed 

Inventory (VMI) Program (MAS) (G– 

FSS–906). This clause instructs 

Contractors to monitor and maintain 

specified inventory levels for selected 

supplies at designated stocking points. 

(18) 552.238–38, Order 

Acknowledgement (G–FSS–907). This 

clause is only applicable to orders 

which state ‘‘Order Acknowledgement 

Required’’ and advises the Contractor of 

the receipt process within 10 days of 

delivery. 

(19) 552.238–39, Urgent Requirements 

(I–FSS–140B). This clause is for use 

when a bona fide need exists for 

accelerated delivery. 

(20) 552.238–40, Post-Award Samples 

(H–FSS–505). This clause is for use with 

carpet acquisitions only and is used to 

instruct the Contractor on submission 

requirements. 

(21) 552.238–41, Guaranteed 

Minimum (I–FSS–106). This clause 

outlines the minimum guarantee that 

the Government agrees to order during 

the term of the contract. 

(22) 552.238–42, Restriction on the 

Acceptance of Orders (I–FSS–107). This 

clause sets restrictions on orders and 

deliveries in connection with the United 

States Navy and the Military Sealift 

Command. 

(23) 552.238–43, Clauses for Overseas 

Coverage (I–FSS–108). The following 

clauses must be inserted, when 

applicable, in solicitations in full text 

for overseas acquisitions: 

(i) 52.214–34, Submission of Offers in 

the English Language. 

(ii) 52.214–35, Submission of Offers 

in U.S. Currency. 

(iii) 52.247–34, F.O.B. Destination. 

(iv) 52.247–38, F.O.B. Inland Carrier, 

Country of Exportation. 

(v) 52.247–39, F.O.B. Inland Point, 

Country of Importation. 

(vi) 552.238–25, Characteristics of 

Electric Current (C–FSS–412). 

(vii) 552.238–29, Marking and 

Documentation Requirements Per 

Shipment (D–FSS–471). 

(viii) 552.238–44, Transshipments (D– 

FSS–477). This clause is for use for 

transshipments and states the terms and 

conditions of the use of Department of 

Defense forms necessary for shipment. 

(ix) 552.238–45, Delivery Prices (F– 

FSS–202–F). This clause is for use for 

F.O.B. Destination in overseas 

deliveries. 

(x) 552.238–46, Foreign Taxes and 

Duties (I–FSS–314). This clause 

delineates which fees, taxes and other 

foreign governmental costs are exempt/ 

non-exempt by the U.S. Government. 

The prices offered must be NET 

delivered F.O.B. 

(xi) 552.238–47, Parts and Service (I– 

FSS–594). This clause is used to ensure 

that the parts and services (including 

the performance of warranty or 

guarantee service) submitted by Offerors 

(dealers/distributors) is good for the 

entire contract period. 

(24) 552.238–48, English Language 

and U.S. Dollar Requirements (I–FSS– 

109). This clause is used to instruct 

Contractors that all documents shall be 

produced in the English language, 

including, but not limited to, price lists 

and catalogs. 

(25) 552.238–49, Geographic Area 

Address of Supply and Service Point. 

This clause outlines the intent for 

available means to maintain 

Government-owned items in satisfactory 

condition. 

(26) 552.238–50, Option to Extend the 

Term of the Contract (Evergreen) (I– 

FSS–163). This clause is for use when 

determining continued performance of a 

contract for the next option period. 

(27) 552.238–51, Scope of Contract (I– 

FSS–102). This clause is for use with 

single awards only and is used to 

outline the scope of delivery. 

(28) 552.238–52, Option to Extend the 

Term of Contract for Period of One Year 

(I–FSS–165). This clause is for use when 

determining continued performance of a 

contract for an additional 12 months, 

inclusive of the same terms and 

conditions as contained in the original 

contract. 

(29) 552.238–53, Option to Extend the 

Term of the Contract (I–FSS–167). This 

clause is for single awards only and is 

used when determining continued 

performance of a contract not to exceed 

60 days. 

(30) 552.238–54, Federal Excise Tax 

(I–FSS–311). This clause is for use with 

tire and tube acquisitions only and 

instructs ordering activities on the 

procedures for invoicing the Federal 

Excise Tax. 

(31) 552.238–55, Contractor 

Partnering Arrangements (CPAs) (I– 

FSS–40). This clause instructs 

Contractors to abide by the terms and 

conditions of their respective contracts 

when participating in Contractor 

Partnering Arrangements. This clause is 

not applicable to the U.S. Department of 

Veterans Affairs. 

(32) 552.238–56, Performance 

Reporting Requirements (I–FSS–50). 

This clause outlines to the Contractor 

the performance requirements for 

contracts exceeding the simplified 

acquisition threshold. 

(33) 552.238–57, Guarantee (I–FSS– 

546). This clause outlines the guarantee 

afforded to the Government for a period 

of one year from the date of delivery. 

(34) 552.238–58, GSA Advantage!® (I– 

FSS–597). This clause outlines to the 

Contractor that it must participate in the 

GSA Advantage!® online shopping 

service. This clause is not applicable to 

the U.S. Department of Veterans Affairs. 

(35) 552.238–59, Electronic 

Commerce-FACNET (I–FSS–599). This 

clause outlines the use of electronic 

commerce/data interchange to conduct 

contract processes and procedures. This 

clause is not applicable to the U.S. 

Department of Veterans Affairs. 

(36) 552.238–60, Performance 

Incentives (I–FSS–60). This clause 

outlines performance incentives agreed 

upon between the ordering activity and 

the Contractor. 

(37) 552.238–61, Price Lists/ 

Brochures for Non-Commercial Items (I– 

FSS–602). This clause outlines the 

requirements for submission of price 

lists for non-commercial items. 

(38) 552.238–62, Office Copier 

Utilization Guidelines (I–FSS–624). 

This clause explains to ordering 

activities the guidelines for selecting the 

appropriate and most economical 

copying process. 

(39) 552.238–63, Preference for Small 

Business Concerns (I–FSS–90). This 

clause advises Offerors to prioritize the 

small business concerns where two or 

more items at the same delivered price 

will meet the ordering activity’s needs. 

(40) 552.238–64, Imprest Funds (Petty 

Cash) (I–FSS–918). This clause outlines 

to the Contractor that it agrees to accept 

cash payment for purchases under the 

terms of the contract in accordance with 

FAR 13.305. 

(41) 552.238–65, Commercial Sales 

Practices Format-Supplies and/or 

Services with an Established Catalog 

Price List (CSP–1). This clause provides 

instructions to the Offeror for 

completing the commercial sales 

practices format for supplies and 

services with an established catalog 

price list. 

(42) 552.238–66, Commercial Sales 

Practices Format-Supplies and/or 

Services with Market Pricing without an 

Established Catalog Price (CSP–2). This 

clause provides instructions to the 

Offeror for completing the commercial 

sales practices format for supplies and/ 

or services with market pricing without 

an established catalog price. 

(43) 552.238–67, Modifications 

(Multiple Award Schedule) (currently 

552.243–72). This clause instructs to the 

Contractor as to the types of contract 

4606 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 

modifications and the procedures for 

requesting them. 

(44) 552.238–68, Economic Price 

Adjustment-Supplies and/or Services 

with an Established Catalog Price List 

(currently 552.216–70). This clause 

provides Contractors the procedures for 

submitting economic price adjustments 

for supplies and services with an 

established catalog price list. 

(45) 552.238–69, Economic Price 

Adjustment-Supplies and/or Services 

with Market Pricing without an 

Established Catalog Price (I–FSS–969). 

This clause provides the Contractor the 

procedures for submitting economic 

price adjustments for supplies and 

services with market pricing and 

without an established catalog price list. 

(46) 552.238–70, Identification of 

Electronic Office Equipment Providing 

Accessibility for the Handicapped. This 

clause instructs the Offeror to identify 

in its offer any special peripheral that 

will facilitate electronic office 

equipment accessibility for 

handicapped individuals. 

(47) 552.238–71, Submission and 

Distribution of Authorized FSS 

Schedule Price Lists. This clause 

provides to the Contractor the 

responsibility of printing and 

distributing its Authorized FSS 

Schedule Price List after award. 

(48) 552.238–72, Identification of 

Products that have Environmental 

Attributes. This clause provides to the 

ordering activity the requirement to 

purchase supplies that are not harmful 

to the environment. 

(49) 552.238–73, Cancellation. This 

clause provides to the Contractor the 

policy and procedures for cancelling a 

contract. 

(50) 552.238–74, Industrial Funding 

Fee and Sales Reporting. This clause 

provides to the Contractor the 

requirement to report all contract sales 

under the contract to GSA on a quarterly 

basis. 

(51) 552.238–75, Price Reductions. 

This clause provides to the Offeror the 

requirement to establish an agreed-upon 

price and discount relationship with the 

Government prior to award. 

(52) 552.238–77, Definition (Federal 

Supply Schedules). This clause defines 

eligible ordering activities authorized to 

place orders under FSS contracts. 

(53) 552.238–78, Scope of Contract 

(Eligible Ordering Activities). This 

clause outlines solicitations issued to 

establish contracts which may be used 

on a non-mandatory basis by designated 

ordering activities as a source of supply 

for supplies or services for domestic 

and/or overseas delivery. 

(54) 552.238–79, Use of Federal 

Supply Schedule Contracts by Certain 

Entities—Cooperative Purchasing. This 

clause outlines to ordering activities the 

procedures for use of Federal Supply 

Schedules by State and Local 

Governments. 

(55) 552.238–81, Placement of Orders 

by Eligible Ordering Activities. This 

clause instructs to eligible ordering 

activities the procedures for placing 

orders through the Electronic Data 

Interchange (EDI). 

(56) 552.238–82, Discounts for Prompt 

Payments (Federal Supply Schedule). 

This clause provides the Offeror the 

Government’s consideration of discount 

for early payment. 

(57) 552.238–83, Contractor’s Billing 

Responsibilities. This clause provides to 

the Contractor the requirements of 

billing responsibilities, particularly 

those associated with participating 

dealers. 

(58) 552.238–84, Payment by Credit 

Card. This clause provides to the Offeror 

the mandatory acceptance of payment of 

the Governmentwide Commercial 

Purchase Card. 

(59) 552.238–85, Payments by NonFederal Ordering Activities. This clause 

provides to eligible non-federal ordering 

activities the procedures for payment 

under a State prompt payment law 

versus the Federal Prompt Payment Act. 

(60) 552.238–86, Warranty-Multiple 

Award Schedule (currently 552.246–73). 

This clause provides, for domestic or 

overseas, the application of the 

Contractor’s standard commercial 

warranty. 

(61) 552.238–87, Warranty (I–FSS– 

542–A). This clause provides 

procedures for the necessary adjustment 

of procured equipment when the 

Government is not at fault. 

(62) 552.238–88, Service Points (I– 

FSS–626). This clause instructs the 

Offeror to provide information in its 

price list addressing supply and service 

points. 

(63) 552.238–89, Contract Sales 

Criteria (I–FSS–639). This clause 

provides the anticipated sales expected 

to be generated by a contract and the 

Government’s right to cancel the 

contract if they are not met. 

(64) 552.238–90, Dealers and 

Suppliers (I–FSS–644). This clause 

instructs Offerors that are other than the 

manufacturer the requirement to submit 

a letter of commitment to assure an 

uninterrupted source of supply to 

satisfy the Government’s requirements. 

(65) 552.238–91, Blanket Purchase 

Agreements (BPAs) (I–FSS–646). This 

clause provides to the Contractor the 

procedures for entering into Blanket 

Purchase Agreements (BPAs) with 

ordering activities. 

(66) 552.238–92, Dissemination of 

Information by Contractor (I–FSS–680). 

This clause provides to the Contractor 

the responsibility of distributing 

Authorized Federal Supply Schedule 

Price Lists to all authorized sales 

outlets. 

(67) 552.238–93, Purchase of Open 

Market Items (CI–FSS–055). This clause 

provides to the ordering activity the 

treatment of open market items under 

BPAs and individual task or delivery 

orders placed against a Federal Supply 

Multiple Award Schedule (MAS) 

contract. 

(68) 552.238–94, Contractor Tasks/ 

Special Requirements (C–FSS–370). 

This clause provides to the Contractor 

special requirements that may be 

needed when completing various tasks. 

(69) 552.238–95, Commercial Delivery 

Schedule (Multiple Award Schedule) 

(currently 552.211–78). This clause 

provides to the Offeror the requirement 

to address normal commercial delivery 

times in its offer. 

(70) 552.238–96, Preparation of Offer 

(Multiple Award Schedule) (currently 

552.212–70). This clause provides to the 

Offeror the requirement of including 

specified information used for 

evaluation purposes when preparing its 

offer. 

(71) 552.238–97, Examination of 

Records by GSA (Multiple Award 

Schedule) (currently 552.215–71). With 

the Senior Procurement Executive’s 

approval, the contracting officer may 

modify the clause at 552.238–97 to 

provide for post-award access to and the 

right to examine records to verify that 

the pre-award/modification pricing, 

sales or other data related to the 

supplies or services offered under the 

contract which formed the basis for the 

award/modification was accurate, 

current, and complete. The following 

procedures apply: 

(i) Such a modification of the clause 

must provide for the right of access to 

expire two years after award or 

modification. 

(ii) Before modifying the clause, the 

Contracting Officer must make a 

determination that absent such access 

there is a likelihood of significant harm 

to the Government and submit it to the 

Senior Procurement Executive for 

approval. 

(iii) The determinations under 

paragraph (d)(2) must be made on a 

schedule-by-schedule basis. 

(72) 552.238–98, Price Adjustment— 

Failure to Provide Accurate Information 

(currently 552.215–72). 

(i) Multiple and single award 

schedules. Insert the following alternate 

FAR clauses in solicitations and 

Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 4607 

contracts issued under FSS, when 

applicable: 

(A) Alternate IV of the FAR provision 

at 52.215–20, Requirements for Cost or 

Pricing Data or Information Other Than 

Cost or Pricing Data. The Contracting 

Officer should insert the following in 

paragraph (b) of the provision: 

(B) An offer prepared and submitted 

in accordance with the clause at 

552.238–96, Preparation of Offer 

(Multiple Award Schedule) (currently 

552.212–70). 

(C) The Offeror shall submit 

commercial sales practices in the format 

provided in this solicitation in 

accordance with the instructions in 

552.238–65, Commercial Sales Practices 

Format—Supplies and/or Services with 

an Established Catalog Price List (CSP– 

1); or 552.238–66, Commercial Sales 

Practices Format—Supplies and/or 

Services with Market Pricing Without 

an Established Catalog Price (CSP–2). 

(D) Any additional supporting 

information requested by the 

Contracting Officer. The Contracting 

Officer may require additional 

supporting information, but only to the 

extent necessary to determine whether 

the price(s) offered is fair and 

reasonable. 

(E) By submission of an offer in 

response to this solicitation, the Offeror 

grants the Contracting Officer or an 

authorized representative the right to 

examine, at any time before initial 

award, books, records, documents, 

papers, and other directly pertinent 

records to verify the pricing, sales and 

other data related to the supplies or 

services proposed in order to determine 

the reasonableness of price(s). Access 

does not extend to Offeror’s cost or 

profit information or other data relevant 

solely to the Offeror’s determination of 

the prices to be offered in the catalog or 

marketplace. 

(ii) Alternate IV of FAR 52.215–21, 

Requirements for Cost or Pricing Data or 

Information Other Than Cost or Pricing 

Data-Modifications. The Contracting 

Officer should insert the following in 

paragraph (b) of the clause: 

(A) Information required by the clause 

at GSAR 552.238–67, Modifications 

(Multiple Award Schedule) (currently 

552.243–72). 

(B) Any additional supporting 

information requested by the 

Contracting Officer. The Contracting 

Officer may require additional 

supporting information, but only to the 

extent necessary to determine whether 

the price(s) offered is fair and 

reasonable. 

(C) By submitting a request for 

modification, the Contractor grants the 

Contracting Officer or an authorized 

representative the right to examine, at 

any time before agreeing to a 

modification, books, records, 

documents, papers, and other directly 

pertinent records to verify the pricing, 

sales and other data related to the 

supplies or services proposed in order 

to determine the reasonableness of 

price(s). Access does not extend to 

Contractor’s cost or profit information or 

other data relevant solely to the 

Contractor’s determination of the prices 

to be offered in the catalog or 

marketplace. 

(73) 552.238–99, Task Order Period of 

Performance. This clause indicates that 

orders placed under a FSS contract 

which include priced options that were 

evaluated at the time the order was 

placed, allows those options to be 

exercised if the contract has expired. 

(74) 552.238–100, Deliveries Beyond 

the Contractual Period—Placing of 

Orders (G–FSS–910). This clause allows 

orders to be processed if they were 

received prior to the expiration of the 

contract. 

(75) 552.238–101, Award (L–FSS–59). 

This provision lets Offerors know that 

only a formal written notification from 

the Government can be interpreted as a 

notice of award. 

(76) 552.238–102, Interpretation of 

Contract Requirements (I–FSS–965). 

This indicates that only written 

clarifications regarding interpretation of 

contract clauses may only be made by 

the Contracting Officer or his/her 

designated representative. 

5. Add Subpart 538.15, consisting of 

sections 538.1504 and 538.1508, to read 

as follows: 

Subpart 538.15—Negotiation and 

Award of Contracts 

Sec. 

538.1504 Evaluation of commercial pricing 

practices. 

538.1508 Price reductions. 

538.1504 Evaluation of commercial pricing 

practices. 

(a) The Government will seek to 

obtain the Offeror’s best price (the best 

price given to the most favored 

customer). However, the Government 

recognizes that the terms and conditions 

of commercial sales vary and there may 

be legitimate reasons why the best price 

is not achieved. 

(b) The contracting officer will 

establish negotiation objectives based on 

a review of relevant data, and determine 

price reasonableness. 

(c) When establishing negotiation 

objectives and determining price 

reasonableness, the contracting officer 

shall compare the terms and conditions 

of the FSS solicitation with the terms 

and conditions of agreements with the 

Offeror’s commercial customers. When 

determining the Government’s price 

negotiation objectives, the following 

factors, at a minimum, shall be 

considered: 

(1) Aggregate volume of anticipated 

sales. 

(2) The purchase of a minimum 

quantity or a pattern of historic 

purchases. 

(3) Pricing, taking into consideration 

any combination of discounts and 

concessions offered to commercial 

customers. In the case of services, 

geographic location, description of 

duties, education and experience. 

(4) Length of the contract period. 

(5) Warranties, training, and/or 

maintenance included in the purchase 

price or provided at additional cost to 

the product prices. 

(6) Ordering and delivery practices. 

(7) Any other relevant information, 

including differences between the FSS 

solicitation and commercial terms and 

conditions that may warrant 

differentials between the offer and the 

discounts offered to the most favored 

commercial customer(s). For example, 

an Offeror may incur more expense 

selling to the Government than to the 

customer who receives the Offeror’s best 

price, or the customer (e.g., dealer, 

distributor, original equipment 

manufacturer, other reseller) who 

receives the best price may perform 

certain value-added functions for the 

Offeror that the Government does not 

perform. In such cases, some reduction 

in the discount given to the Government 

may be appropriate. If the best price is 

not offered to the Government, the 

contracting officer should ask the 

Offeror to identify and explain the 

reason for any differences. Offerors 

should not be required to provide 

detailed cost breakdowns. 

(d) The contracting officer may award 

a contract containing pricing which is 

less favorable than the best price the 

Offeror extends to any commercial 

customer for similar purchases if the 

contracting officer makes a 

determination that both of the following 

conditions exist: 

(1) The prices offered to the 

Government are fair and reasonable, 

even though comparable discounts were 

not negotiated. 

(2) Award is otherwise in the best 

interest of the Government. 

538.1508 Price reductions. 

(a) Section 552.238–75, Price 

Reductions, requires the Contractor to 

maintain during the contract period the 

negotiated price/discount relationship 

(and/or term and condition relationship) 

4608 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 

between the Government and the 

Offeror’s customer or category of 

customers on which the contract award 

was predicated. If a change occurs in the 

Contractor’s commercial pricing or 

discount arrangement applicable to the 

identified commercial customer (or 

category of customers) that results in a 

less advantageous relationship between 

the Government and this customer or 

category of customers, the change 

constitutes a ‘‘price reduction.’’ 

(b) The contracting officer shall 

ensure that the Contractor understands 

the requirements of section 552.238–75 

and agrees to report all price reductions 

as provided for in the clause to the 

Government. 

6. Add Subpart 538.25, consisting of 

section 538.2502, to read as follows: 

Subpart 538.25—Requirement for 

Foreign Entities 

Sec. 

538.2502 English language and U.S. dollar 

requirements. 

538.2502 English language and U.S. dollar 

requirements. 

(a) Offerors shall reprint their 

commercial price list in English if it is 

not published and disseminated 

commercially in English. 

(b) Overseas customers may make 

payments for supplies or services in 

local currencies. 

7. Add Subpart 538.42, consisting of 

sections 538.4201–3, 538.4206, and 

538.4206–1, to read as follows: 

Subpart 538.42—Contract 

Administration 

Sec. 

538.4201–3 IFF and Contractor partnering 

arrangements. 

538.4206 Contractor cancellation of FSS 

contract. 

538.4206–1 Processing cancellation of a 

Contractor request. 

538.4201–3 IFF and Contractor partnering 

arrangements. 

Contractors participating in 

Contractor Partnering Arrangements 

must abide by all terms and conditions 

of their respective contracts, including 

compliance with clause 552.238–74, 

Industrial Funding Fee and Sales 

Reporting. 

538.4206 Contractor cancellation of FSS 

contract. 

538.4206–1 Processing cancellation at 

Contractor request. 

Contractor-requested cancellations 

shall be formalized by a contract 

modification, which incorporates the 

Contractor’s letter and indicates the 

effective date of the cancellation (30 

days after written notice). The 

contracting officer is responsible for 

ensuring that the modification 

distributed to the Contractor and the 

administrative contracting officer. The 

modification will provide a formal 

notice to the administrative contracting 

officer and an appropriate closure to the 

contract file. Contractors should be 

reminded that they are responsible for 

completion of any outstanding orders. 

The contracting officer must cancel the 

contract in FSS Online. 

8. Add Subpart 538.43, consisting of 

section 538.4303–3, to read as follows: 

Subpart 538.43—Contract 

Modifications 

Sec. 

538.4303–3 Contractor initiated 

modifications. 

538.4303–3 Contractor initiated 

modifications. 

All Contractor modification requests 

must adequately describe and justify the 

proposed changes. However, there are 

certain modification requests that 

require additional documentation before 

they can be evaluated and approved. 

Examples of such modification requests 

include economic price adjustments, 

price reductions, and the addition/ 

deletion of items. The specific 

documentation required to be submitted 

for each of these actions is identified 

under the Modifications and/or 

Economic Price Adjustment clauses that 

are applicable to the contract. If any 

modification request fails to provide 

current, accurate, and complete 

information as required by the terms 

and conditions in the contract, the 

contracting officer should return the 

request and detail its deficiencies to the 

Contractor. 

PART 552—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

552.211–78 [Redesignated as 552.238–95] 

9. Redesignate section 552.211.78 as 

552.238–95. 

552.212–70 [Redesignated as 552.238–96] 

10. Redesignate section 552.212.70 as 

552.238–96. 

552.215–71 [Redesignated as 552.238–97] 

11. Redesignate section 552.215–71 as 

552.238–97. 

552.215–72 [Redesignated as 552.238–98] 

12. Redesignate section 552.215.72 as 

552.238–98. 

552.216–70 [Redesignated as 552.238–68] 

13. Redesignate section 552.216–70 as 

section 552.238–68. 

14. Add sections 552.238–1 through 

552.238–66 to read as follows: 

552.238–1 Cover Page for Worldwide 

Multiple Award Schedules (CP–FSS–1–C). 

As prescribed in 538.1203(a)(1), insert 

the following provision: 

WORLDWIDE FEDERAL SUPPLY 

SCHEDULE CONTRACT (CP–FSS–1–C) 

(DATE) 

Solicitation No. *llll* 

Federal Supply Schedule Contract for All 

Geographic Areas 

FSC Group *llll* Part *llll* 

Section *llll*. 

Supply: *llll*. 

FSC Class(es)/Product Code(s)/NAICS: 

*llll* and/or 

Service: *llll*. 

Service Code(s)/NAICS: *llll*. 

Any information that may be desired on 

this particular solicitation can be obtained 

from the issuing office; address shown 

herein. 

(End of Provision) 

552.238–2 Significant Changes (CP–FSS– 

2). 

As prescribed in 538.1203(a)(2), insert 

the following provision: 

SIGNIFICANT CHANGES (CP–FSS–2) 

(DATE) 

The following changes have been made 

since the issuance of the solicitation for the 

supplies and/or services covered herein: 

*llll*. 

(End of Provision) 

552.238–3 Pricing (CP–FSS–19). 

As prescribed in 538.1203(a)(3), insert 

the following provision: 

PRICING (CP–FSS–19) (DATE) 

Offerors are advised that separate pricing 

may be submitted for different countries if 

separate pricing is consistent with the 

Offeror’s commercial sales practice. 

(End of Provision) 

552.238–4 Notice of Total Small Business 

Set-Aside (A–FSS–31). 

As prescribed in 538.1203(a)(4), insert 

the following provision: 

NOTICE OF TOTAL SMALL BUSINESS 

SET-ASIDE (A–FSS–31) (DATE) 

The clause entitled ‘‘Notice of Total Small 

Business Set-Aside,’’ applies to the following 

items in this solicitation: *llll*. 

(End of Provision) 

552.238–5 Information Collection 

Requirements and Hours of Operation (A– 

FSS–41). 

As prescribed in 538.1203(a)(5), insert 

the following provision: 

Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 4609 

INFORMATION COLLECTION 

REQUIREMENTS AND HOURS OF 

OPERATION (A–FSS–41) (DATE) 

(a) ‘‘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.’’ 

(b) ‘‘GSA’s hours of operation are 8:00 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.’’ 

(End of Provision) 

552.238–6 Notice: Requests for 

Explanation or Information (CP–FSS–3). 

As prescribed in 538.1203(a)(6), insert 

the following provision: 

NOTICE: REQUESTS FOR 

EXPLANATION OR INFORMATION 

(CP–FSS–3) (DATE) 

Oral or written requests for explanation or 

information regarding this solicitation should 

be directed to: 

General Services Administration 

*llll* 

*llll* 

*llll* 

or 

Phone *llll*. 

Note: Important. Do not address offers, 

modifications or withdrawals to the address 

in this provision. The address designated for 

receipt of offers is contained elsewhere in 

this solicitation. 

(End of Provision) 

552.238–7 Estimated Sales (B–FSS–96). 

As prescribed in 538.1203(b)(1), insert 

the following provision: 

ESTIMATED SALES (B–FSS–96) 

(DATE) 

The ‘‘Estimated Sales’’ column of the 

Schedule of Items shows (1) a twelve-month 

reading of purchases in dollars or purchases 

in units as reported by the previous 

Contractor(s), or (2) estimates of the 

anticipated dollar volume where the item is 

new. The absence of a figure indicates that 

neither reports of previous purchases nor 

estimates of sales are available. 

*llll*. 

(End of Provision) 

552.238–8 Consideration of Offers Under 

Standing Solicitation (A–FSS–11). 

As prescribed in 538.1203(b)(2), insert 

the following provision: 

CONSIDERATION OF OFFERS UNDER 

STANDING SOLICITATION (A–FSS– 

11) (DATE) 

(a) This solicitation is a standing 

solicitation from which the Government 

contemplates award of contracts for supplies/ 

services listed in the Schedule of Items. This 

solicitation will remain in effect unless 

replaced by a refreshed solicitation. 

(b) There is no closing date for receipt of 

offers; therefore, offers may be submitted for 

consideration at any time. 

(c) Contracts awarded under this 

solicitation will be in effect for 5 years from 

the date of award, unless further extended, 

pursuant to clause 552.238–50/I–FSS–163, 

Option to Extend the Term of the Contract 

(Evergreen), canceled pursuant to the 

Cancellation clause, or terminated pursuant 

to the termination provisions of the contract. 

(End of Provision) 

552.238–9 Period for Acceptance of Offers 

(A–FSS–12–C). 

As prescribed in 538.1203(b)(3), insert 

the following provision: 

PERIOD FOR ACCEPTANCE OF 

OFFERS (A–FSS–12–C) (DATE) 

Paragraph (c) of the provision 52.212–1, 

Instructions to Offerors—Commercial Items, 

is revised to read as follows: ‘‘The Offeror 

agrees to hold the prices in its offer for 

*llll* calendar days from the date of the 

offer, within which the offer may be 

accepted.’’ 

(End of Provision) 

552.238–10 Additional Offer Submission 

Instructions (Federal Supply Schedules) 

(SCP–FSS–001). 

As prescribed in 538.1203(b)(4), insert 

the following provision: 

ADDITIONAL OFFER SUBMISSION 

INSTRUCTIONS (FEDERAL SUPPLY 

SCHEDULES) (DATE) 

(a) All information provided by the Offeror 

shall be current, accurate, and complete, and 

shall demonstrate a thorough understanding 

of the scope of this solicitation and where 

applicable, described in the Statement of 

Work. By signing the offer, the Offeror attests 

that there have been no changes to the text 

of this solicitation. Proposed exceptions shall 

be stated in writing and submitted with 

Administration/Contract Data. 

(b) All offers must include the following, 

as applicable to the solicitation. Any 

deficiencies or omitted information may 

result in the offer being returned without 

further consideration. 

(c) Solicitation response/vendor response 

document. (1) If available, the preferred 

submission method is electronically via 

eOffer (http://eOffer.gsa.gov). Offerors must 

have a digital certificate, which is available 

at the eOffer Web site, to submit an electronic 

offer. 

(2) Alternately, submit the entire paper 

solicitation with a signed Standard Form 

1449, unless otherwise directed in the 

solicitation. The most recent refresh of this 

solicitation can be viewed on FedBizOpps. 

Submissions of previous versions received 

more than thirty (30) calendar days after the 

issuing date of the current version of the 

solicitation will be rejected. 

(d) Exhibit I—Administrative/Contract 

Data. (1) ‘‘Pathway to Success’’ training 

certificate. ‘‘Pathway to Success’’ training is 

available through the Vendor Support Center 

Web site at http://vsc.gsa.gov. Click on the 

tab ‘‘Vendor Training’’ to access this free, 

Web-based training. The training session is 

less than two hours total and covers the 

major factors your organization should 

consider prior to submitting an offer to a FSS 

solicitation. 

(2) If a consultant or an agent, other than 

an employee of the company, is being used 

during or after award, submit an agent 

authorization letter signed by a company 

official. 

(3) A copy of the current and up-dated 

registration in Central Contractor Registry 

(CCR). 

(4) The complete Online Representations 

and Certifications Application (ORCA). The 

information is current, accurate, and 

complete, and reflects the North American 

Industrial Classification System (NAICS) 

code(s) for this solicitation. 

(5) A completed Open Ratings, Inc. (ORI) 

Past Performance Evaluation and Order Form 

(references). 

(6) When applicable, a Small Business 

Subcontracting Plan. A sample outline that 

may be used in preparing a subcontracting 

plan is included at FedBizOpps. (ref. FAR 

19.704). 

(7) Offeror shall provide the current 

contract number(s) and price lists of any 

other FSS Schedule contract(s). 

(8) If other than the manufacturer, Offeror 

must provide guaranteed source of supply 

letters (letters of commitment). 

(9) Additional solicitation specific 

instructions: *llll*. 

(d) Exhibit II, Technical Offer. (1) 

Technical Offer for supplies— 

(i) Refer to 552.212–73. 

(ii) Other pertinent factors, if any: *____* 

(2) Technical Offer for Services: The 

technical offer is comprised of three factors— 

Factor One (Corporate Experience), Factor 

Two (Relevant Project Experience), and 

Factor Three (Past Performance). All offers 

shall address these factors as instructed in 

this provision. If the Offeror is proposing 

multiple Special Item Numbers (SINs), they 

shall clearly identify each SIN with the 

corresponding technical information. Please 

provide a narrative for each of the following 

sections to demonstrate the company’s 

capabilities in satisfying ALL underlying 

requirements as listed in this provision. 

(i) Factor One—Corporate Experience: 

Submit a (three page maximum) narrative 

describing the company’s corporate 

experience in a market relevant to this 

solicitation, regardless of the number of SINs 

being offered. Company must have provided 

the offered services for at least two years. At 

a minimum, the narrative must include the 

following: 

(A) Number of years of corporate 

experience; to include quality control 

measures to facilitate high quality 

4610 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 

performance. A brief history of the 

organization’s activities contributing to 

experience in the field and to the 

development of expertise and capabilities. 

(B) If applicable, Offeror must submit a 

Professional Compensation Plan as defined 

by 29 CFR 541 and in accordance with clause 

52.222–16 and a copy of the Offeror’s policy 

that addresses uncompensated overtime in 

accordance with provision 52.237–10, 

Identification of Uncompensated Overtime. 

(C) Additional solicitation specific 

instructions: *____* 

(ii) Factor Two—Relevant Experience. (A) 

For each SIN, the Offeror must provide 

descriptions (four page maximum) of two (2) 

contracts/agreements/projects, with similar 

scope and complexity to the work relevant to 

the scope of the solicitation. Each description 

must demonstrate how it is relevant to the 

SIN(s). 

(B) To be relevant, the service must either 

have been completed within the last two 

years or be on-going. Additional solicitation 

specific instructions: *____* 

(C) Each contract/agreement/project 

description shall include the following 

customer reference information: 

(1) Contract/Agreement/Project name; 

(2) Project description, including any 

challenges, actions and resolutions; 

(3) Dollar amount of contract; 

(4) Project duration, which includes the 

original estimated completion date and the 

actual completion date; and 

(5) Point of contact, telephone number, and 

email address. 

(D) Substitution For Relevant Contract/ 

Agreement/Project Experience—If contract/ 

agreement/project experience does not exist, 

the Offeror may substitute relevant contract/ 

agreement/project of predecessor 

company(ies) and personnel that have a 

vested interest in the company (i.e., 

substantial financial interest). If the Offeror 

chooses to make such a substitution, the 

narratives must clearly identify the 

predecessor company(ies) and personnel. 

(Refer to FAR 15.305(a)(2) and Comptroller 

General Decision: B–296197 June 30, 2005). 

(iii) Factor Three—Past Performance: The 

Offeror shall provide a Past Performance 

Evaluation from Open Ratings, Inc. (ORI) 

dated within 12-months of offer submission. 

Offerors are responsible for payment to ORI 

for the Past Performance Evaluation. See 

attached form. 

(e) Exhibit III—Price Offer. (1) For supplies 

and/or services based on an established 

catalog price, Offerors must submit: 

(i) The commercial catalog, price list, 

schedule, and/or other pricing document(s) 

used as the basis of the offer; and 

(ii) The proposed discount(s) and/or 

concession(s) offered under this solicitation. 

(2) For supplies and/or services based on 

market prices without an established catalog 

price, the Offeror must submit a document 

including description of line item, proposed 

pricing, concessions, terms and conditions 

offered under the solicitation. Travel cost 

shall not be included in the proposed 

pricing. Additional solicitation specific 

instructions: *____* 

(3) Any deficiencies or omitted information 

may result in the offer being returned 

without further consideration. 

(End of Provision) 

552.238–11 Additional Evaluation Factors 

for Award of Services (CI–FSS–151). 

As prescribed in 538.1203(b)(5), insert 

the following provision: 

ADDITIONAL EVALUATION FACTORS 

FOR AWARD OF SERVICES (CI–FSS– 

151) (DATE) 

The Government will consider award for a 

responsible Offeror, whose offer conforms to 

all solicitation requirements, is determined 

technically acceptable, has acceptable past 

performance, and whose prices are 

determined fair and reasonable. 

(a) Exhibit II—Technical Offer. Technical 

Offer will be reviewed, evaluated and rated 

acceptable or unacceptable based on the 

three evaluation factors described in this 

provision. Award will be made on a SIN 

basis. A rating of ‘‘unacceptable’’ under any 

evaluation factor, by SIN, will result in an 

‘‘unacceptable’’ rating overall for that SIN. 

Offers determined unacceptable for all 

proposed SIN(s) will be rejected. 

(1) Factor One—Corporate Experience. 

Failure to provide the information as 

described in the 552.238–10 will result in an 

‘‘unacceptable’’ rating for that SIN. 

(i) *____* years corporate experience in the 

industry relevant to the scope of the 

solicitation. 

(ii) Description of quality control 

measure(s) evaluated as set forth in FAR 

12.208 and FAR 46.4. 

(iii) Review the compensation plans as set 

forth in FAR 52.222–46 Evaluation of 

Compensation for Professional Employees 

and FAR 52.237–10 Identification of 

Uncompensated Overtime for acceptability. 

(iv) Additional solicitation specific 

evaluation factors: *____* 

(2) Factor Two—Relevant Experience. The 

Offeror must demonstrate the satisfactory 

completion of contracts/agreements/projects, 

which are of a similar size and scope as 

anticipated under this contract. 

(i) Contracts/agreements/projects have 

been completed within two years of the 

submission of the offer. 

(ii) In order for the projects to be 

acceptable, the Offeror must demonstrate a 

commitment to customer service, timeliness, 

quality of services and personnel provided, 

and resolution of conflicts. 

(3) Factor Three—Past Performance. Past 

performance evaluation will be conducted as 

set forth in FAR 12.206 and FAR 15.3. 

(i) Open Ratings Past Performance 

Evaluation will be considered, along with 

other information available to the Contracting 

Officer in determining the past performance 

rating of the Offeror. The government 

reserves the right to consider any other 

pertinent information. 

(ii) The Government will evaluate the 

Offeror’s performance in the following key 

areas: overall performance, reliability, order 

accuracy, delivery/timeliness, quality, 

business relations, personnel, customer 

support, and responsiveness. Those Offerors 

demonstrating a pattern of consistent 

acceptable performance will receive an 

acceptable rating. 

(iii) Those Offerors with no relevant 

performance history will received a neutral 

rating. 

(b) Exhibit III—Price Offer. (1) In order for 

the offer to be rated acceptable, the 

Contracting Officer must determine that the 

proposed pricing is fair, reasonable, and 

supportable, based on the submission of 

sufficient pricing information as outlined in 

the 552.238–65/CSP–1 and/or 552.238–66/ 

CSP–2. 

(2) The proposed pricing must be 

advantageous to the government. If the 

pricing offered is not ‘‘equal to or lower 

than’’ the lowest billable net rate, an 

acceptable justification must be provided. 

(3) Additional evaluation factors unique to 

this solicitation: *____________* 

(c) The government reserves the right to 

award without discussions. Therefore, the 

Offeror’s initial offer should contain the best 

terms from a price and technical standpoint. 

(End of Provision) 

552.238–12 Submission of Offers— 

Additional Instructions (CI–FSS–002). 

As prescribed in 538.1203(b)(6), insert 

the following provision: 

SUBMISSION OF OFFERS— 

ADDITIONAL INSTRUCTIONS (CI– 

FSS–002) (DATE) 

Offerors are requested to submit a signed 

original and *____* copies of SF 1449 

together with all addenda and attachments 

complete in every respect with the exception 

of oversized blueprints, drawings, or similar 

documents attached to the solicitation. 

Oversized blueprints, drawings, or similar 

documents are not required to be duplicated 

for the purpose of submitting a duplicate 

copy of the offer. 

(End of Provision) 

552.238–13 Impact of Mandatory Use on 

Quantities Ordered (B–FSS–97). 

As prescribed in 538.1203(b)(7), insert 

the following provision: 

IMPACT OF MANDATORY USE ON 

QUANTITIES ORDERED (B–FSS–97) 

(DATE) 

This solicitation represents the first 

instance where the General Services 

Administration is the only agency listed as a 

mandatory user. It is not known how this 

change will impact on the quantities ordered 

under this contract. 

(End of Provision) 

552.238–14 Introduction of New Supplies/ 

Services (INSS) (L–FSS–400). 

As prescribed in 538.1203(b)(8), insert 

the following provision: 

INTRODUCTION OF NEW SUPPLIES/ 

SERVICES (INSS) (L–FSS–400) (DATE) 

(a) Definition. Introduction of New 

Supplies/Services Special Item Number 

(INSS SIN) means a new or improved supply 

or service within the scope of the Federal 

Supply Schedule (FSS), but not currently 

Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 4611 

available under any Federal Supply Service 

contract—that provides a new service, 

function, task, or attribute that may provide 

a more economical or efficient means for 

ordering activities to accomplish their 

missions. It may significantly improve an 

existing supply or service. It may be a supply 

or service existing in the commercial market, 

but not yet introduced to the Federal 

Government. 

(b) Offerors are encouraged to introduce 

new or improved supplies or services via 

INSS SIN at any time by clearly identify the 

INSS SIN item in the offer. 

(c) The Contracting Officer has the sole 

discretion to determine whether a supply or 

service will be accepted as an INSS SIN item. 

The Contracting Officer will evaluate and 

process the offer and may perform a technical 

review. The INSS SIN provides temporary 

placement until the Contracting Officer 

formally categorizes the new supply or 

service. 

(d) If the Contractor has an existing 

schedule contract, the Government may, at 

the sole discretion of the Contracting Officer, 

modify the existing contract to include the 

INSS SIN item in accordance with 552.238– 

67, Modifications (Multiple Award Schedule) 

(currently 552.243–72). 

(End of Provision) 

552.238–15 Contract Price List (I–FSS– 

600). 

As prescribed in 538.1203(b)(9), insert 

the following provision: 

CONTRACT PRICE LIST (I–FSS–600) 

(DATE) 

(a) Electronic Contract Data. (1) At the time 

of award, the Contractor will be provided 

instructions and is responsible for submitting 

electronic contract data in a prescribed 

electronic format as required by clause 

552.238–71, Submission and Distribution of 

Authorized FSS Schedule Price Lists. 

(2) The Contractor will have a choice to 

transmit its file submissions electronically 

through Electronic Data Interchange (EDI) in 

accordance with the Federal Implementation 

Convention (IC) or use the application made 

available at the time of award. The 

Contractor’s electronic files must be 

complete; correct; readable; virus-free; and 

contain only those supplies and services, 

prices, and terms and conditions that were 

accepted by the Government. They will be 

added to GSA’s electronic ordering system 

known as GSA Advantage!®, a menu-driven 

database system that provides online access 

to contract ordering information, terms and 

conditions, up-to-date pricing, and the option 

to create an electronic order. The Contractor’s 

electronic files must be received no later than 

sixty (60) days after award, unless addition 

time is approved by the Contracting Officer. 

Contractors should refer to clause 552.238–58 

GSA Advantage!® (I–FSS–597) for further 

information. 

(3) Further details on EDI, ICs, and GSA 

Advantage!® can be found in clause 552.238– 

59 Electronic Commerce—FACNET (I–FSS– 

599). 

(4) The Contractor is encouraged to place 

the GSA identifier (logo) on their website for 

those supplies or services covered by this 

contract. The logo can link to the Contractor’s 

FSS price list. The identifier URL is located 

at www.gsa.gov/logo. All resultant ‘‘web price 

lists’’ shown on the Contractor’s website 

must be in accordance with section (b)(3)(ii) 

of this clause and nothing other than what 

was accepted/awarded by the Government 

may be included. If the Contractor elects to 

use contract identifiers on its website (either 

logos or contact number) the website must 

clearly distinguish between those items 

awarded on the contract and any other items 

offered by the Contractor on an open market 

basis. 

(5) The Contractor is responsible for 

keeping all electronic catalog data up to date; 

e.g., prices, supply deletions and 

replacements. 

(b) FSS Price List. (1) When requested by 

an ordering activity, the Contractor must 

prepare, print, and distribute a paper FSS 

Price List as required by clause 552.238–71 

Submission and Distribution of Authorized 

FSS Price Lists. This must be done as set 

forth in this paragraph (b). 

(2) When required, the Contractor must 

prepare a paper FSS Price List by either: 

(i) Using the commercial catalog, price list, 

schedule, or other document as accepted by 

the Government, showing accepted 

discounts, and removing all items, terms, and 

conditions not accepted by the Government 

by lining out those items or by a stamp across 

the face of the item stating ‘‘NOT UNDER 

CONTRACT’’ or ‘‘EXCLUDED’’; or 

(ii) Composing a price list in which only 

those items, terms, and conditions accepted 

by the Government are included, and which 

contain only net prices, based upon the 

commercial price list less discounts accepted 

by the Government. In this instance, the 

Contractor must show on the cover page the 

notation, ‘‘Prices Shown Herein are Net 

(discount deducted)’’. 

(3) The FSS Price List format must include 

the following information: 

(i) Cover page. The cover page should 

include the following information: 

(A) Authorized FSS Price List. 

(B) On-line access to contract ordering 

information, terms and conditions, up-to-date 

pricing, and the option to create an electronic 

delivery order are available through GSA 

Advantage!®, a menu-driven database 

system. The INTERNET address GSA 

Advantage!® is: www.GSAAdvantage.gov. 

(C) Schedule Title. 

(D) FSC Group, Part, and Section. 

(E) FSC Class(es)/Product Code(s) and/or 

Service Codes (as applicable). 

(F) Contract number. 

(G) For more information on ordering from 

Schedules click on the link titled 

‘‘Schedules’’ under Acquisition Solutions 

from at gsa.gov/fas. 

(H) Contract period. 

(I) Contractor’s name, address, email, fax 

number and phone number (as applicable). 

(J) Contractor’s internet address/website 

where schedule information can be found (as 

applicable). Contract administration source 

(if different from preceding entry). 

(K) Business size. 

(L) This price list is current through 

modification/refresh number: (sequentially 

numbered). 

(ii) Customer information. The following 

information should be placed under this 

heading in consecutively numbered 

paragraphs in the sequence set forth in this 

provision. If this information is placed in 

another part of the FSS Price List, a table of 

contents must be shown on the cover page 

that refers to the exact location of the 

information. 

1. Table of awarded special item number(s) 

with appropriate cross-reference to category 

descriptions. 

2. Maximum order. 

3. Minimum order. 

4. Geographic coverage (delivery area). 

5. Point(s) of Production (city, county, and 

State or foreign country). All items are Trade 

Agreement Act, as amended, compliant. 

6. Discount from list prices or statement of 

net price. 

7. Quantity discounts. 

8. Prompt payment terms. 

9a. Notification that payment by credit 

cards must be accepted at or below the 

micro-purchase threshold. 

9b. Notification whether payment by credit 

cards are accepted or not accepted above the 

micro-purchase threshold. 

10. Foreign items (list items by country of 

origin). 

11a. Time of delivery. (Contractor insert 

number of days.) 

11b. Expedited Delivery. The Contractor 

will insert the sentence ‘‘Items available for 

expedited delivery are noted in this price 

list.’’ under this heading. The Contractor may 

use a symbol of its choosing to highlight 

items in its price lists that have expedited 

delivery. 

11c. Overnight and 2-day delivery. The 

Contractor will indicate whether overnight 

and 2-day delivery are available. Also, the 

Contractor will indicate that the schedule 

customer may contact the Contractor for rates 

for overnight and 2-day delivery. 

11d. Urgent Requirements. The Contractor 

will note in its price list the ‘‘Urgent 

Requirements’’ clause of its contract and 

advise agencies that they can also contact the 

Contractor’s representative to effect a faster 

delivery. 

12. F.O.B. point(s). 

13a. Ordering address(es). 

13b. Ordering procedures: For supplies and 

services, the ordering procedures, 

information on Blanket Purchase Agreements 

(BPA’s) are found in Federal Acquisition 

Regulation (FAR) 8.405–3. 

14. Payment address(es). 

15. Warranty provision. 

16. Export packing charges, if applicable. 

17. Terms and conditions of payment by 

credit cards acceptance (any thresholds 

above the micro-purchase level). 

18. Terms and conditions of rental, 

maintenance, and repair (if applicable). 

19. Terms and conditions of installation (if 

applicable). 

20. Terms and conditions of repair parts 

indicating date of parts price lists and any 

discounts from list prices (if applicable). 

20a. Terms and conditions for any other 

services (if applicable). 

21. List of service and distribution points 

(if applicable). 

22. List of participating dealers (if 

applicable). 

4612 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 

23. Preventive maintenance (if applicable). 

24a. Special attributes such as 

environmental attributes (e.g., recycled 

content, energy efficiency, and/or reduced 

pollutants). 

24b. If applicable, indicate that Section 508 

compliance information is available on 

Electronic and Information Technology (EIT) 

supplies and services and show where full 

details can be found (e.g. Contractor’s Web 

site or other location). The EIT standards can 

be found at: www.Section508.gov. 

25. Data Universal Number System (DUNS) 

number. 

26. Notification regarding registration in 

Central Contractor Registration (CCR) 

database. 

27a. Identification of the lowest priced 

model number and lowest unit price for that 

model for each special item number awarded 

in the contract. This price is the Government 

price based on a unit of one, exclusive of any 

quantity/dollar volume, prompt payment, or 

any other concession affecting price. Those 

contracts that have unit prices based on the 

geographic location of the customer, should 

show the range of the lowest price, and cite 

the areas to which the prices apply. 

27b. If the Contractor is proposing hourly 

rates, a description of all corresponding 

commercial job titles, experience, functional 

responsibility and education for those types 

of employees or subContractors who will 

perform services shall be provided. If hourly 

rates are not applicable, indicate ‘‘Not 

applicable’’ for this item. 

(4) When requested, the Contractor must 

provide, in the format requested by the 

Contracting Officer (electronic or paper) of 

the FSS Price Lists (including covering 

letters) within 30 days after the date of 

award. Accuracy of information and 

computation of prices is the responsibility of 

the Contractor. Note: The removal discussed 

in subdivision (b)(2) of this provision must 

be accomplished prior to the printing and 

distribution of the FSS Lists. 

(5) Inclusion of incorrect information 

(electronically or paper) will cause the 

Contractor to reprint/resubmit/correct and 

redistribute the FSS Price List, and may 

constitute sufficient cause for Cancellation, 

applying the provisions of 52.212–4, Contract 

Terms and Conditions (paragraph (m), 

Termination for Cause), and application of 

any other remedies as provided by law— 

including monetary recovery. 

(6) In addition, one copy of the FSS Price 

List must be submitted to the: GSA, Federal 

Acquisition Service, National Customer 

Service Center (QC0CC), Bldg. #4, 1500 E. 

Bannister Road, Kansas City, MO 64131– 

3009, Telephone: 1 (800) 488–3111. 

Alternate I—use for Schedule 70 only. 

Replace paragraph (b) of the base clause with 

the following paragraph (b) (Date): 

(b) FSS Price List. (1) When submitting a 

paper offer, the Offeror should prepare a 

paper Information Technology Schedule 

Price List in accordance with the Attachment 

titled ‘‘Guidelines for Format and Content of 

Authorized Information Technology 

Schedule Price List’’. Two (2) copies of the 

proposed Information Technology Schedule 

Price List shall be submitted with the 

Offeror’s proposal. 

(2) The Contracting Officer will return one 

copy of the Authorized Information 

Technology Schedule Price List to the 

Contractor with the notification of contract 

award. In accordance with GSAR clause 

552.238–71 the Contractor may print and 

distribute the awarded price list without 

written approval from the Contracting 

Officer. The price list must include all 

applicable terms and conditions of the cited 

contract. The Contractor will be responsible 

for the accuracy of the price list. 

(3) As an option, the Contractor may 

provide one (1) copy (including cover letter) 

of the Authorized Information Technology 

Schedule Price List to the Contracting Officer 

for review prior to distribution. Accuracy of 

information and computation of prices is the 

responsibility of the Contractor. 

(4) The Contractor may formally print and 

distribute the Authorized Information 

Technology Schedule Price List. Inclusion of 

incorrect information (electronically or in 

paper) will cause the Contractor to reprint/ 

resubmit/correct and redistribute the price 

list, and may constitute sufficient cause for 

Cancellation, applying the provisions of 

52.212–4, Contract Terms and Conditions 

(paragraph (m), Termination for Cause) and 

application of any other remedies as 

provided by law—including monetary 

recovery. 

(6) In addition, one copy of the Authorized 

Information Technology Schedule Price List 

must be submitted to the: GSA, Federal 

Acquisition Service, National Customer 

Service Center (QC0CC), Bldg. #4, 1500 E. 

Bannister Road, Kansas City, MO 64131– 

3009, Telephone: 1 (800) 488–3111. 

(End of Provision) 

552.538–16 Ordering Information (Federal 

Supply Schedules). 

As prescribed in 538.1203(b)(10), 

insert the following provision: 

ORDERING INFORMATION (FEDERAL 

SUPPLY SCHEDULES) (DATE) 

(a) In accordance with the Placement of 

Orders clause of this solicitation, the Offeror 

elects to receive orders placed by either [

] facsimile transmission or [ ] computer-tocomputer Electronic Data Interchange (EDI). 

(b) An Offeror electing to receive 

computer-to-computer EDI is requested to 

indicate the name, address, and telephone 

number of the representative to be contacted 

regarding establishment of an EDI interface: 

Name: lllllllllllllllll

Address: llllllllllllllll

Telephone number: lllllllllll

(c) An Offeror electing to receive orders by 

facsimile transmission is requested to 

indicate the telephone number(s) for 

facsimile transmission equipment where 

orders should be forwarded: 

Telephone number: lllllllllll

Telephone number: lllllllllll

Telephone number: lllllllllll

(d) For mailed orders, the Offeror is 

requested to include the postal mailing 

address(es) where paper form orders should 

be mailed. 

Name: lllllllllllllllll

Address: llllllllllllllll

llllllllllllllllllll

(e) Offerors marketing through dealers are 

requested to indicate whether those dealers 

will be participating in the proposed 

contract: 

YESll NOll 

If ‘‘yes’’ is checked, ordering information to 

be inserted in paragraphs (b) or (c) in this 

section shall reflect that in addition to 

Offeror’s name, address, and facsimile 

transmission telephone number, orders can 

be addressed to the Offeror’s name, c/o 

nearest local dealer. In this event, two copies 

of a list of participating dealers shall 

accompany this offer, and shall also be 

included in Contractor’s Federal Supply 

Schedule price list. 

(End of Provision) 

552.238–17 Contractor’s Remittance 

(Payment) Address. 

As prescribed in 538.1203(b)(11), 

insert the following provision: 

CONTRACTOR’S REMITTANCE 

(PAYMENT) ADDRESS (DATE) 

(a) Payment by electronic funds transfer 

(EFT) is the preferred method of payment. 

However, under certain conditions, the 

ordering activity may elect to make payment 

by check. The Offeror shall indicate the 

payment address to which checks should be 

mailed for payment of proper invoices 

submitted under a resultant contract: 

Payment: llllllllllllllll

Address: llllllllllllllll

(b) Offeror shall furnish by attachment to 

this solicitation, the remittance (payment) 

addresses of all authorized participating 

dealers receiving orders and accepting 

payment by check in the name of the 

Contractor in care of the dealer, if different 

from their ordering address(es) specified 

elsewhere in this solicitation. If a dealer’s 

ordering and remittance address differ, both 

must be furnished and identified as such. 

(c) All Offerors are cautioned that if the 

remittance (payment) address shown on an 

actual invoice differs from that shown in 

paragraph (b) of this provision or on the 

attachment, the remittance address(es) in 

paragraph (b) of this provision or attached 

will govern. Payment to any other address, 

except as provided for through EFT payment 

methods, will require an administrative 

change to the contract. 

Note: All orders placed against a Federal 

Supply Schedule contract are to be paid by 

the individual ordering activity placing the 

order. Each order will cite the appropriate 

ordering activity payment address, and 

proper invoices should be sent to that 

address. Proper invoices should be sent to 

GSA only for orders placed by GSA. Any 

other ordering activity’s invoices sent to GSA 

will only delay your payment. 

(End of Provision) 

552.238–18 Final Proposal Revision (L– 

FSS–101). 

As prescribed in 538.1203(b)(12), 

insert the following provision: 

Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 4613 

FINAL PROPOSAL REVISION (L–FSS– 

101) (DATE) 

(a) Upon the conclusion of discussions the 

Contracting Officer will request a final 

proposal revision. Oral requests will be 

confirmed in writing. 

(b) The request will include— 

(i) Notice that discussions are concluded; 

(ii) Notice that this is the opportunity to 

submit a final proposal revision; 

(iii) The specified cutoff date and time; 

(iv) A statement that any modification 

proposed as a result of the final proposal 

revision must be received by the date and 

time specified and will be subject to the Late 

Submissions, Modifications, and 

Withdrawals of Proposals provision of this 

solicitation. 

(c) The Contracting Officer will not reopen 

discussions after receipt of final proposal 

revisions unless it is clearly in the interests 

of the Government to do so. If discussions are 

reopened, the Contracting Officer will issue 

an additional request for final proposal 

revision. 

(d) It is the Contracting Officer’s desire to 

conclude negotiations by *____*. 

(End of Provision) 

552.238–19 Use of Non-Government 

Employees to Review Offers. 

As prescribed in 538.1203(b)(13), 

insert the following provision: 

USE OF NON-GOVERNMENT 

EMPLOYEES TO REVIEW OFFERS 

(DATE) 

(a) The Government may employ 

individual technical consultants/advisors/ 

contractors from the listed organizations in 

this provision to review limited portions of 

the technical, management and price 

proposals to assist the government in both 

pre-award and post-award functions. 

*lllllllllllllllllll* 

(b) These representatives will be used to 

advise on specific technical, management, 

and price matters and shall not, under any 

circumstances, be used as voting evaluators. 

However, the Government may consider the 

advice provided in its evaluation process. In 

addition, contractor personnel may be used 

in specific contract administration tasks (e.g., 

administrative filing, review of deliverables, 

etc.). 

(c) If so utilized, personnel from these 

organizations will be required to execute a 

non-disclosure and organizational conflict of 

interest statements. 

(End of Provision) 

552.238–20 Authorized Negotiators (K– 

FSS–1). 

As prescribed in 538.1203(b)(14), 

insert the following provision: 

AUTHORIZED NEGOTIATORS (K– 

FSS–1) (DATE) 

The offeror shall, in the spaces provided, 

fill in the names of all persons authorized to 

negotiate with the Government in connection 

with this request for proposals or quotations: 

*lllllllllllllllllll* 

*lllllllllllllllllll* 

*lllllllllllllllllll* 

(List the names, titles, telephone numbers 

and electronic mail address of the authorized 

negotiators.) 

(End of Provision) 

552.238–21 Authentication Supplies and 

Services (CI–FSS–52). 

llAs prescribed in 538.1203(c)(1), 

insert the following clause: 

AUTHENTICATION SUPPLIES AND 

SERVICES (CI–FSS–52) (DATE) 

(a) General Background. (1) Authentication 

Supplies and Services provide for 

authentication of individuals for purposes of 

physical and logical access control, 

electronic signature, and performance of Ebusiness transactions and delivery of 

Government services. Authentication 

Supplies and Services consist of hardware, 

software components and supporting services 

that provide for identity assurance. 

(2) Homeland Security Presidential 

Directive 12 (HSPD–12), ‘‘Policy for a 

Common Identification Standard for Federal 

Employees and Contractors’’ establishes the 

requirement for a mandatory 

Governmentwide standard for secure and 

reliable forms of identification issued by the 

Federal Government to its employees and 

Contractor employees assigned to 

Government contracts in order to enhance 

security, increase Government efficiency, 

reduce identity fraud, and protect personal 

privacy. Further, the Directive requires the 

Department of Commerce to promulgate a 

Federal standard for secure and reliable 

forms of identification within six months of 

the date of the Directive. As a result, the 

National Institute of Standards and 

Technology (NIST) released Federal 

Information Processing Standard (FIPS) 201: 

Personal Identity Verification of Federal 

Employees and Contractors on February 25, 

2005. FIPS 201 requires that the digital 

certificates incorporated into the Personal 

Identity Verification (PIV) identity 

credentials comply with the X.509 Certificate 

Policy for the U.S. Federal PKI Common 

Policy Framework. In addition, FIPS 201 

requires that Federal identity badges referred 

to as PIV credentials, issued to Federal 

employees and Contractors comply with the 

Standard and associated NIST Special 

Publications 800–73, 800–76, 800–78, and 

800–79. 

(b) Special Item Numbers. The General 

Services Administration has established the 

E-Authentication Initiative (see URL: http:// 

cio.gov/ eauthentication) to provide common 

infrastructure for the authentication of the 

public and internal federal users for logical 

access to Federal E-Government applications 

and electronic services. To support the 

government-wide implementation of HSPD– 

12 and the Federal E-Authentication 

Initiative, GSA is establishing the following 

Special Item Numbers (SINs): 

• SIN 132–60: Access Certificates for 

Electronic Services (ACES) Program. This 

program provides identity management and 

authentication services and ACES digital 

certificates for use primarily by external end 

users to access Federal Government 

electronic services and transactions in 

accordance with the X.509 Certificate Policy 

for the Federal ACES Program. 

• SIN 132–61: PKI Shared Service 

Providers (PKI SSP) Program. This program 

provides PKI services and digital certificates 

for use by Federal employees and Contractors 

to the Federal Government in accordance 

with the X.509 Certificate Policy for the U.S. 

Federal PKI Common Policy Framework. 

• SIN 132–62: HSPD–12 Supply and 

Service Components. SIN 132–62 is 

established for supplies and services for 

agencies to implement the requirements of 

HSPD–12, FIPS–201 and associated NIST 

special publications. The HSPD–12 

implementation components specified under 

this SIN are: 

PIV Enrollment and Registration Services and 

Supplies Hardware and Software Supplies 

Deployment Services\Managed Service; 

PIV Systems Infrastructure Services and 

Supplies Hardware and Software Supplies 

Deployment Services\Managed Service; 

PIV Card Management and Production 

Services, and Supplies Hardware and 

Software Products Deployment 

Services\Managed Services; 

PIV Card Finalization Services and Supplies 

Hardware and Software Products 

Deployment Services/Managed Services; 

PIV System Integration Services, and 

Supplies (Bundled) ‘‘Pure’’ Integration 

Services Turn-Key Integrated Services and 

Supplies Managed Services; 

Physical Access Control Supplies and 

Services; 

Logical Access Control Supplies and 

Services; and 

Approved FIPS 201-Compliant Supplies and 

Services. 

(c) Qualification Information. (1) All of the 

supplies and services for the SINs listed in 

paragraph (b) of this clause must be qualified 

as being compliant with Governmentwide 

requirements before they will be included on 

a FSS Information Technology (IT) Schedule 

contract. The Qualification Requirements and 

associated evaluation procedures against the 

Qualification Requirements for each SIN and 

the specific Qualification Requirements for 

HSPD–12 implementation components are 

presented at the following URL: http:// 

www.idmanagement.gov. 

(2) In addition, the National Institute of 

Standards and Technology (NIST) has 

established the NIST Personal Identity 

Verification Program (NPIVP) to evaluate 

integrated circuit chip cards and supplies 

against conformance requirements contained 

in FIPS 201. FSS has established the FIPS 

201Evaluation Program to evaluate other 

supplies needed for agency implementation 

of HSPD–12 requirements where normative 

requirements are specified in FIPS 201 and 

to perform card and reader interface testing 

for interoperability. Products that are 

approved as FIPS–201 compliant through 

these evaluation and testing programs may be 

offered directly through SIN 132–62 under 

the category ‘‘Approved FIPS 201–Compliant 

Products and services. 

(d) Qualification Requirements. Offerors 

proposing supplies and services under 

4614 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 

Special Item Numbers (SINs) 132–60, 132–61 

and 132–62 are required to provide the 

following: 

(1) Proposed items must be determined to 

be compliant with Federal requirements for 

that Special Item Number. Qualification 

Requirements and procedures for the 

evaluation of supplies and services are 

posted at the URL: http:// 

www.idmanagement.gov. GSA will follow 

these procedures in qualifying Offeror’s 

supplies and services against the 

Qualification Requirements applicable to 

SIN. Offerors must submit all documentation 

certification letter(s) for HSPD–12, SINs 132– 

60, 132–61 and 132–62 at the same time as 

submission of proposal. Award will be 

dependent upon receipt of official 

documentation from the Acquisition Program 

Management Office (APMO) listed in this 

clause verifying satisfactory qualification 

against the Qualification Requirements of the 

proposed SIN(s). 

(2) After award, Contractor agrees that 

certified supplies and services will not be 

offered under any other SIN on any FSS 

Multiple Award Schedule. 

(3)(i) If the Contractor changes the supplies 

or services previously qualified, GSA may 

require the Contractor to resubmit the 

supplies or services for re-qualification. 

(ii) If the Federal Government changes the 

qualification requirements or standards, 

Contractor must resubmit the supplies and 

services for re-qualification. 

(e) Demonstrating Conformance. The 

Federal Government has established 

Qualification Requirements for 

demonstrating conformance with the 

Standards. The following Web sites provide 

additional information regarding the 

evaluation and qualification processes: 

(1) For Access Certificates for Electronic 

Services (ACES) and PKI Shared Service 

Provider (SSP) Qualification Requirements 

and evaluation procedures: http:// 

www.idmanagement.gov; 

(2) For HSPD–12 Product and Service 

Components Qualification Requirements and 

evaluation procedures: http:// 

www.idmanagement.gov; 

(3) For FIPS 201 compliant supplies and 

services qualification and approval 

procedures: http://www.csrc.nist.gov/pivproject and http://www.smart.gov. 

(f) Acquisition Program Management 

Office (APMO). GSA has established the 

APMO to provide centralized technical 

oversight and management regarding the 

qualification process to industry partners and 

Federal agencies. Contact the following 

APMO for information on the EAuthentication Qualification process. 

(1) The Acquisition Program Management 

Office point-of-contact for Access Certificates 

for Electronic Services (ACES—SIN 132–60) 

is: Stephen P. Duncan, Program Manager, EAuthentication Program Management Office, 

2011 Crystal Drive, Suite 911, Arlington, VA 

22202, stephen.duncan@gsa.gov, 703–872– 

8537. 

(2) The Acquisition Program Management 

Office Point-of-contact for Shared Services 

Provider (SSP) Program (SIN 132–61) is: 

Judith Spencer, Office of Electronic Gov’t & 

Technology, 1800 F Street, NW., Room 2011, 

Washington, DC 20405, 

Judith.spencer@gsa.gov, 202–208–6576. 

(3) The Acquisition Program Management 

Office point-of-contact for HSPD–12 Products 

and Services or bundled Solutions (SIN 132– 

62) is: Mike Brooks, Director, Center for 

Smartcard Solutions, Office of Center for 

Smartcard Solutions, 1800 F Street, NW., 

Room 5010, Washington, DC 20405, 202– 

501–2765 (telephone), 202–208–3133 (fax). 

(4) The Acquisition Program Management 

Office point-of-contact for FIPS 201 

Evaluation Program Approved Products List 

(Sin 132–62) is: April Giles, FIPS 201 

Evaluation Program Chief Architect, Identity 

Management Division, GSA Office of 

Governmentwide Policy, 202–501–1123 

(telephone). 

(End of Provision) 

552.238–22 Indemnification and Liability 

(CI–FSS–053). 

As prescribed in 538.1203(c)(2), insert 

the following clause: 

INDEMNIFICATION AND LIABILITY 

(CI–FSS–053) (DATE) 

For services related to hazardous 

substances or wastes under this contract, it 

is understood that the General Services 

Administration (GSA) and/or Department of 

Veterans Affairs (VA) does not become an 

owner, operator, generator, arranger, or 

transporter of hazardous substances or wastes 

by executing a schedule contract or by the 

award of a task order by an ordering activity. 

As a result, GSA/VA shall not incur any 

liability under any environmental laws for 

contamination to the extent resulting from 

the negligent acts or omissions of a schedule 

Contractor performing the services. In 

addition, the Contractor shall be liable for, 

and shall indemnify and hold harmless the 

GSA/VA against, all actions or claims for loss 

of or damage to property or the injury or 

death of persons to the extent resulting from 

the fault, negligence, or wrongful act or 

omission of the Contractor, its agents, or 

employees. EXCEPTION: The 

aforementioned does not apply when GSA/ 

VA is the ordering activity and is procuring 

the services for property it owns and/or has 

legal jurisdiction. 

(End of Clause) 

552.238–23 Organizational Conflicts of 

Interest (CI–FSS–054). 

As prescribed in 538.1203(c)(3), insert 

the following clause: 

ORGANIZATIONAL CONFLICTS OF 

INTEREST (CI–FSS–054) (DATE) 

(a) Definitions. 

Contractor means the person, firm, 

unincorporated association, joint venture, 

partnership, or corporation that is a party to 

this contract. 

Contractor and its affiliates and Contractor 

or its affiliates refers to the Contractor, its 

chief executives, directors, officers, 

subsidiaries, affiliates, subcontractors at any 

tier, and consultants and any joint venture 

involving the Contractor, any entity into or 

with which the Contractor subsequently 

merges or affiliates, or any other successor or 

assignee of the Contractor. 

An Organizational conflict of interest 

exists when the nature of the work to be 

performed under a proposed ordering activity 

contract, without some restriction on 

ordering activities by the Contractor and its 

affiliates, may either (i) result in an unfair 

competitive advantage to the Contractor or its 

affiliates or (ii) impair the Contractor’s or its 

affiliates’ objectivity in performing contract 

work. 

(b) The Contractor shall promptly notify 

the Ordering Activity of any known or 

reasonably anticipated potential 

organizational conflicts of interest when 

submitting a quote or proposal in response to 

a solicitation for services, or once the conflict 

of interest becomes apparent, whichever 

circumstance arises first. 

(c) The Contractor shall not provide any 

personnel to perform services under this 

contract that it knows or reasonably 

anticipates will result in an individual 

conflict of interest. In the event that a conflict 

of interest arises involving the Contractor’s 

personnel, the Contractor shall promptly 

notify the Ordering Activity of the facts and 

circumstances and take all necessary steps to 

mitigate or eliminate the conflict of interest 

while ensuring acceptable service delivery. 

(d) To avoid an organizational, individual 

or financial conflict of interest and to avoid 

prejudicing the best interests of the ordering 

activity, ordering activities may place 

restrictions on the Contractor(s), its affiliates, 

chief executives, directors, subsidiaries and 

subcontractors at any tier when placing 

orders against schedule contracts. Such 

restrictions shall be consistent with FAR 

9.505 and shall be designed to avoid, 

neutralize, or mitigate organizational 

conflicts of interest that might otherwise 

exist in situations related to individual 

orders placed against the schedule contract. 

Examples of situations, which may require 

restrictions, are provided at FAR 9.508. 

(End of Clause) 

552.238–24 Section 508 Compliance (CI– 

FSS–056). 

As prescribed in 538.1203(c)(4), insert 

the following clause: 

SECTION 508 COMPLIANCE (CI–FSS– 

056) (DATE) 

If applicable, Section 508 compliance 

information on the supplies and services in 

this contract are available in Electronic and 

Information Technology (EIT) at the 

following: 

Note: Contractor should insert the 

Contractor’s Web site or other location where 

full details can be found. 

The EIT standard can be found at: 

www.Section508.gov. 

(End of Clause) 

552.238–25 Characteristics of Electric 

Current (C–FSS–412). 

As prescribed in 538.1203(c)(5), insert 

the following clause: 

Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 4615 

CHARACTERISTICS OF ELECTRIC 

CURRENT (C–FSS–412) (DATE) 

Contractors supplying equipment which 

uses electrical current are required to supply 

equipment suitable for the electrical system 

at the location at which the equipment is to 

be used as specified on the order. 

(End of Clause) 

552.238–26 Separate Charge For 

Performance Oriented Packaging (POP) (D– 

FSS–447). 

As prescribed in 538.1203(c)(6), insert 

the following clause: 

SEPARATE CHARGE FOR 

PERFORMANCE ORIENTED 

PACKAGING (POP) (D–FSS–447) 

(DATE) 

(a) Offerors are requested to quote a 

separate charge for providing preservation, 

packaging, packing, and marking and 

labeling of domestic and overseas HAZMAT 

SURFACE SHIPMENTS in compliance with 

all requirements of the following: 

(1) International Maritime Dangerous 

Goods (IMDG) Code established by the 

International Maritime Organization (IMO) in 

accordance with the United Nations (UN) 

Recommendations on the Transportation of 

Dangerous Goods (Note: Marine pollutants 

must be labeled as required by the IMDG 

Code); 

(2) The performance oriented packaging 

requirements contained in the U. S. 

Department of Transportation (DOT) 

Hazardous Materials Regulations (HMR; 49 

CFR Parts 171–180) effective October 1, 1991 

(Note: The ‘‘Combustible’’ and ‘‘ORM’’ 

classifications contained these requirements 

are not permitted by the IMDG Code and can 

not be used); 

(3) Occupational Safety and Health 

Administration (OSHA) Regulations 29 CFR 

Parts 1910.101–1910.120 and 1910.1000– 

1910.1500, relating to Hazardous and Toxic 

Substances; and 

(4) Any preservation, packaging, packing, 

and marking and labeling requirements 

contained elsewhere in the solicitation. 

(b) Offerors are requested to list the 

hazardous material item to which the 

separate charge applies in the spaces 

provided in this clause or on a separate 

attachment. These separate charges will be 

accepted as part of the award, if considered 

reasonable, and shall be included in the 

Contractor’s published catalog and/or price 

list. 

ITEMS (NSN’S, SIN’S or Descriptive Name of 

Articles, as appropriate) Packaging 

lllllllllllllllllllll

lllllllllllllllllllll

lllllllllllllllllllll

Charge for Performance Oriented 

lllllllllllllllllllll

lllllllllllllllllllll

lllllllllllllllllllll

(c) Ordering activities will not be obligated 

to utilize the Contractor’s services for 

Performance Oriented Packaging, and they 

may obtain such services elsewhere if 

desired. However, the Contractor shall 

provide items in Performance Oriented 

Packaging when such packing is specified on 

the delivery order. The Contractor’s contract 

price and the charge for Performance 

Oriented Packaging will be shown as separate 

entries on the delivery order. 

(d) The test reports showing compliance 

with package requirements will be made 

available to contract administration/ 

management representatives upon request. 

(End of clause) 

552.238–27 Special Packing (D–FSS–464). 

As prescribed in 538.1203(c)(7), insert 

the following clause: 

SPECIAL PACKING (D–FSS–464) 

(DATE) 

(a) Bidders are requested to furnish, in the 

spaces provided elsewhere in this invitation, 

additional charges for Level B and Level A 

preservation, packaging and packing 

(hereinafter referred to as ‘‘packing’’) in 

accordance with *llll*. These 

additional charges shall include any 

differentials in transportation and other costs 

incidental to handling and shipment of the 

items to destination. 

(b) Additional charges submitted for Level 

B and/or Level A packing will not be 

considered in evaluating bids. However, 

award will be made for such packing to the 

bidder receiving award on the basic item 

when the prices offered for the higher level 

of packing are considered reasonable. 

(c) Ordering activities will not be obligated 

to utilize the Contractor’s services for special 

packing awarded under this invitation, and 

they may obtain such services elsewhere if 

desired. However, the Contractor shall fulfill 

all orders for items packed Level B or Level 

A at the accepted price when such packing 

is specified on the purchase order. 

(End of clause) 

552.238–28 Export Packing (D–FSS–465). 

As prescribed in 538.1203(c)(8), insert 

the following clause: 

EXPORT PACKING (D–FSS–465) 

(DATE) 

(a) Offerors are requested to quote, in the 

price list accompanying their offer (or by 

separate attachment), additional charges or 

net prices covering delivery of the items 

furnished with commercial and/or 

Government export packing. Government 

export packing, if offered, shall be in 

accordance with *llll*. If commercial 

export packing is offered, the offer or price 

list shall include detailed specifications 

describing the packing to be furnished at the 

price quoted. 

(b) Ordering activities will not be obligated 

to utilize the Contractor’s services for export 

packing accepted under this solicitation, and 

they may obtain such services elsewhere if 

desired. However, the Contractor shall 

furnish items export packed when such 

packing is specified on the purchase order. 

(End of clause) 

552.238–29 Marking and Documentation 

Requirements Per Shipment (D–FSS–471). 

As prescribed in 538.1203(c)(9), insert 

the following clause: 

MARKING AND DOCUMENTATION 

REQUIREMENTS PER SHIPMENT (D– 

FSS–471) (DATE) 

It shall be the responsibility of the ordering 

office to determine the full marking and 

documentation requirements necessary under 

the various methods of shipment authorized 

by the contract. Set forth in this clause is the 

minimum information and documentation 

that will be required for shipment. In the 

event the ordering office fails to provide the 

essential information and documentation, the 

Contractor shall, within three days after 

receipt of order, contact the ordering office 

and advise them accordingly. The Contractor 

shall not proceed with any shipment 

requiring transshipment via U.S. Government 

facilities without the stated prerequisites in 

this clause: 

Direct Shipments. The Contractor shall 

mark all items ordered against this contract 

with indelible ink, paint or fluid, as follows: 

(a) Traffic Management or Transportation 

Officer at FINAL destination. 

(b) Ordering Supply Account Number. 

(c) Account number. 

(d) Delivery Order or Purchase Order 

Number. 

(e) National Stock Number, if applicable; or 

Contractor’s item number. 

(f) Box llll of llll Boxes. 

(g) Nomenclature (brief description of 

items). 

(End of clause) 

552.238–30 Inspection (E–FSS–521–D). 

As prescribed in 538.1203(c)(10), 

insert the following clause: 

INSPECTION (E–FSS–521–D) (DATE) 

Inspection of all purchases under this 

contract will be made at destination by an 

authorized Government representative. 

(End of clause) 

552.238–31 Emergency/Expedited Delivery 

Times (I–FSS–051). 

As prescribed in 538.1203(c)(11), 

insert the following clause: 

EMERGENCY/EXPEDITED DELIVERY 

TIMES (I–FSS–051) (DATE) 

In the case of an Emergency, ordering 

activities may require 24-hour access or 

delivery. The Offeror is requested to annotate 

on the offer or by a separate attachment a 

willingness to provide this service and 

identify any additional cost associated with 

such request. 

(a) AbilityOne (formerly JWOD) (NIB/NISH) 

RETURN POLICY (Applicable to all 

AbilityOne (formerly JWOD) (NIB/NISH) 

distributors). The AbilityOne (formerly 

JWOD) Program stands behind the quality of 

its supplies and will replace or credit 

authorized AbilityOne (formerly JWOD) 

distributors 100% of the purchase price for 

any merchandise that is defective upon 

4616 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 

receipt by the Contractor and/or its carrier. In 

such cases, the distributor should contact the 

AbilityOne (formerly JWOD) Program for 

instructions on whether to dispose of or 

return the defective supply to the 

manufacturing agency. NIB and NISH must 

be notified of damaged supply (s) within 48 

hours of receipt of supply by the Contractor. 

Any defective merchandise must be 

identified and returned within one year of 

receipt. 

(b) In the case of damaged merchandise 

that was shipped FOB Destination, the 

distributor should contact the AbilityOne 

(formerly JWOD) Program for instructions on 

handling the damaged goods. Damaged goods 

must be identified in writing within five (5) 

days of signing the bill of lading and damage 

should be noted on the bill of landing before 

the receiving personnel sign for the 

shipment. For damaged merchandise that 

was shipped FOB Origin (using the 

distributor’s freight carriers), the distributor 

must file a claim with the freight carrier. 

(c) In addition to paragraph (a) of this 

clause, the AbilityOne (formerly JWOD) 

Program allows returns on a limited basis for 

supplies that are not damaged or defective 

but unsold by wholesale or commercial 

distributors (see attached AbilityOne 

(formerly JWOD) Return Policy effective May 

1, 2003. 

(End of clause) 

552.238–32 Delivery Prices (F–FSS–202– 

G). 

As prescribed in 538.1203(c)(12), 

insert the following clause: 

DELIVERY PRICES (F–FSS–202–G) 

(DATE) 

(a) Prices offered must cover delivery as 

provided in this clause, to destinations 

located within the 48 contiguous States and 

the District of Columbia. 

(1) Delivery to the door of the specified 

Government activity by freight or express 

common carriers on articles for which storedoor delivery is provided, free or subject to 

a charge, pursuant to regularly published 

tariffs duly filed with the Federal and/or 

State regulatory bodies governing such 

carrier; or, at the option of the Contractor, by 

parcel post on mailable articles, or by the 

Contractor’s vehicle. Where store-door 

delivery is subject to a charge, the Contractor 

shall (a) place the notation ‘‘Delivery Service 

Requested’’ on bills of lading covering such 

shipments, and (b) pay such charge and add 

the actual cost thereof as a separate item to 

his invoice. 

(2) Delivery to siding at destinations when 

specified by the ordering office, if delivery is 

not covered under paragraph (a)(1) of this 

clause. 

(3) Delivery to the freight station nearest 

destination when delivery is not covered 

under paragraph (a)(1) or (a)(2) of this clause. 

(b) The Offeror is requested to indicate 

whether or not prices submitted cover 

delivery f.o.b. destination in Alaska, Hawaii, 

and the Commonwealth of Puerto Rico: 

(Yes) (No) 

Alaska ............................... ............ ............

(Yes) (No) 

Hawaii ............................... ............ ............

Puerto Rico ....................... ............ ............

(c) When deliveries are made to 

destinations outside the contiguous 48 States; 

i.e., Alaska, Hawaii, and the Commonwealth 

of Puerto Rico, and are not covered by 

paragraph (b) of this clause, the following 

conditions will apply: 

(1) Delivery will be f.o.b. inland carrier, 

point of exportation (FAR 52.247–38), with 

the transportation charges to be paid by the 

Government from point of exportation to 

destination in Alaska, Hawaii, or the 

Commonwealth of Puerto Rico, as designated 

by the ordering office. The Contractor shall 

add the actual cost of transportation to 

destination from the point of exportation in 

the 48 contiguous States nearest to the 

designated destination. Such costs will, in all 

cases, be based upon the lowest regularly 

established rates on file with the Interstate 

Commerce Commission, the U.S. Maritime 

Commission (if shipped by water), or any 

State regulatory body, or those published by 

the U.S. Postal Service; and must be 

supported by paid freight or express receipt 

or by a statement of parcel post charges 

including weight of shipment. 

(2) The right is reserved to ordering 

agencies to furnish Government bills of 

lading. 

lllllllllllllllllllll

lllllllllllllllllllll

(End of clause) 

552.238–33 Additional Service Charge for 

Delivery Within Consignee’s Premises (F– 

FSS–244–B). 

As prescribed in 538.1203(c)(13), 

insert the following clause: 

ADDITIONAL SERVICE CHARGE FOR 

DELIVERY WITHIN CONSIGNEE’S 

PREMISES (F–FSS–244–B) (DATE) 

(a) Offerors are requested to insert, in the 

spaces provided in this clause or by 

attachment hereto, a separate charge for 

‘‘Delivery Within Consignee’s Premises’’ 

applicable to each shipping container to be 

shipped. (Articles which are comparable in 

size and weight, and for which the same 

charge is applicable, should be grouped 

under an appropriate item description.) 

These additional charges will be accepted as 

part of the award, if considered reasonable, 

and shall be included in the Contractor’s 

published catalog and/or price list. 

(b) Ordering activities are not obligated to 

issue orders on the basis of ‘‘Delivery Within 

Consignee’s Premises,’’ and Contractors may 

refuse delivery on that basis provided such 

refusal is communicated in writing to the 

ordering activity issuing such orders within 

5 days of the receipt of such order by the 

Contractor and provided further, that 

delivery is made in accordance with the 

other delivery requirements of the contract. 

Failure of the Contractor to submit this 

notification within the time specified shall 

constitute acceptance to furnish ‘‘Delivery 

Within Consignee’s Premises’’ at the 

additional charge awarded. When an 

ordering activity issues an order on the basis 

of ‘‘Delivery Within Consignee’s Premises’’ at 

the accepted additional charge awarded and 

the Contractor accepts such orders on that 

basis, the Contractor will be obligated to 

provide delivery ‘‘F.o.b. Destination, Within 

Consignee’s Premises’’ in accordance with 

FAR 52.247–35, which is then incorporated 

by reference, with the exception that an 

additional charge as provided herein is 

allowed for such services. Unless otherwise 

stipulated by the Offeror, the additional 

charges awarded hereunder may be applied 

to any delivery within the 48 contiguous 

States and the District of Columbia. 

(c) When exercising their option to issue 

orders on the basis of delivery service as 

provided herein, ordering activities will 

specify ‘‘Delivery Within Consignee’s 

Premises’’ on the order, and will indicate the 

exact location to which delivery is to be 

made. The Contractor’s delivery price and 

the additional charge(s) for ‘‘Delivery Within 

Consignee’s Premises’’ will be shown as 

separate entries on the order. 

ITEMS (NSN’s or Special Item Numbers or 

Descriptive Name of Articles) 

lllllllllllllllllllll

lllllllllllllllllllll

lllllllllllllllllllll

ADDITIONAL CHARGE (Per shipping 

container) FOR ‘‘DELIVERY WITHIN 

CONSIGNEE’S PREMISES’’ 

lllllllllllllllllllll

lllllllllllllllllllll

lllllllllllllllllllll

552.238–34 Additional Service Charge for 

Delivery Within Consignee’s Premises 

(Specification for Inside Delivery) (F–FSS– 

244–C). 

As prescribed in 538.1203(c)(14), 

insert the following clause: 

ADDITIONAL SERVICE CHARGE FOR 

DELIVERY WITHIN CONSIGNEE’S 

PREMISES (F–FSS–244–C) (DATE) 

The Government reserves the right to 

require ‘‘delivery within consignee’s 

premises’’ on any order placed against this 

contract. When ‘‘Inside Delivery’’ is specified 

on the purchase order the Contractor will be 

required to provide delivery in accordance 

with FAR 52.247–35, which is then 

incorporated by reference, with the exception 

that an additional charge as provided herein 

is allowed for this service. The Contractor 

will be paid for this additional service at the 

following rates which will be shown as a 

separate item on the order: 

Number of units of 

*llll* to be delivered ‘‘within consignee’s premises’’ 

Rate 

*llllllll* *llllllll* 

*llllllll* *llllllll* 

*llllllll* *llllllll* 

*llllllll* *llllllll* 

(End of clause) 

Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 4617 

552.238–35 Shipping Points (F–FSS–712– 

B). 

As prescribed in 538.1203(c)(15), 

insert the following clause: 

SHIPPING POINTS (F–FSS–712–B) 

(DATE) 

Offerors submitting F.O.B. origin (or F.O.B. 

shipping point) prices shall indicate, in the 

spaces provided, the complete address 

(street, city, and State) from which the items 

offered will be shipped, and the name of the 

rail carrier serving plant (if any). If more than 

one shipping point is designated for an item, 

ordering activities will have the option of 

specifying the shipping point unless the 

Offeror otherwise qualifies his offer: 

Item Nos. Name of facility Address Rail carrier 

lll lll lll lll 

lll lll lll lll 

lll lll lll lll 

(End of clause) 

552.238–36 Contact for Contract 

Administration (G–FSS–900–C). 

As prescribed in 538.1203(c)(16), 

insert the following clause: 

CONTACT FOR CONTRACT 

ADMINISTRATION (G–FSS–900–C) 

(DATE) 

(a) Offerors should complete paragraphs (a) 

and (b) if providing both domestic and 

overseas delivery. Complete paragraph (a) if 

providing domestic delivery only. Complete 

paragraph (b) if providing overseas delivery 

only. 

(b) The Contractor shall designate a person 

to serve as the contract administrator for the 

contract both domestically and overseas. The 

contract administrator is responsible for 

overall compliance with contract terms and 

conditions. The contract administrator is also 

the responsible official for issues concerning 

552.238–74, Industrial Funding Fee and 

Sales Reporting (July 2003), including 

reviews of Contractor records. The 

Contractor’s designation of representatives to 

handle certain functions under this contract 

does not relieve the contract administrator of 

responsibility for contract compliance. Any 

changes to the designated individual must be 

provided to the Contracting Officer in 

writing, with the proposed effective date of 

the change. 

(c) Domestic: 

Name 

Title 

Address 

Zip Code 

Telephone No. (llll) Fax No. 

E-Mail Address 

(d) Overseas: Overseas contact points are 

mandatory for local assistance with the 

resolution of any delivery, performance, or 

quality complaint from customer agencies. 

(Also, see the requirement in 552.238–47, 

Parts and Service (I–FSS–594).) At a 

minimum, a contact point must be furnished 

for each area in which deliveries are 

contemplated, e.g., Europe, South America, 

Far East, etc. 

Name 

Title 

Address 

Zip Code 

Telephone No. (llll) Fax No. 

E-Mail Address 

(End of clause) 

552.238–37 Vendor Managed Inventory 

(VMI) Program (MAS) (G–FSS–906). 

As prescribed in 538.1203(c)(17), 

insert the following clause: 

VENDOR MANAGED INVENTORY 

(VMI) PROGRAM (MAS) (G–FSS–906) 

(DATE) 

(a) The term ‘‘Vendor Managed Inventory’’ 

describes a system in which the Contractor 

monitors and maintains specified inventory 

levels for selected items at designated 

stocking points. VMI enables the Contractor 

to plan production and shipping more 

efficiently. Stocking points benefit from 

reduced inventory but steady stock levels. 

(b) Contractors that commercially provide 

a VMI-type system may enter into similar 

partnerships with customers under a Blanket 

Purchase Agreement. 

(End of clause) 

552.238–38 Order Acknowledgement (GFSS–907). 

As prescribed in 538.1203(c)(18), 

insert the following clause: 

ORDER ACKNOWLEDGEMENT (G– 

FSS–907) (DATE) 

Contractors shall acknowledge only those 

orders which state ‘‘Order Acknowledgement 

Required.’’ These orders shall be 

acknowledged within 10 days after receipt. 

Such acknowledgement shall be sent to the 

activity placing the order and contain 

information pertinent to the order, including 

the anticipated delivery date. 

(End of clause) 

552.238–39 Urgent Requirements (I–FSS– 

140–B). 

As prescribed in 538.1203(c)(19), 

insert the following clause: 

URGENT REQUIREMENTS (I–FSS–140– 

B) (DATE) 

When the Federal Supply Schedule 

contract delivery period does not meet the 

bona fide urgent delivery requirements of an 

ordering agency, agencies are encouraged, if 

time permits, to contact the Contractor for the 

purpose of obtaining accelerated delivery. 

The Contractor shall reply to the inquiry 

within 3 workdays after receipt. (Telephonic 

replies shall be confirmed by the Contractor 

in writing.) If the Contractor offers an 

accelerated delivery time acceptable to the 

ordering agency, any order(s) placed 

pursuant to the agreed upon accelerated 

delivery time frame shall be delivered within 

this shorter delivery time and in accordance 

with all other terms and conditions of the 

contract. 

(End of clause) 

552.238–40 Post-Award Samples (H–FSS– 

505). 

As prescribed in 538.1203(c)(20), 

insert the following clause: 

POST-AWARD SAMPLES (H–FSS–505) 

(DATE) 

(a) Within 20 days after approval of the 

brochure proof, Contractors who have 

received an award on carpet items are 

required to: 

(1) Furnish the Contracting Officer with 5 

sets (by sets, not loosely packed) of samples 

approximately 12 by 12 inches of all patterns 

and/or colors awarded. 

(2) Furnish such additional sets of samples 

as may be requested during the contract 

period. 

(3) Furnish a set of small cuttings 

approximately 3 by 5 inches of each quality 

carpet awarded to all ordering activities to 

which brochures are mailed, except that such 

sample cuttings need not be furnished when 

the brochure distributed by the Contractor 

was fully swatched with all available colors 

for each quality carpet awarded. 

(4) Furnish sets of 3 by 5 inch samples to 

any agency when specifically requested to do 

so notwithstanding the fact that the brochure 

was fully swatched. 

(5) Furnish the Contracting Officer with 

one 18 inch by 24 inch sample of each 

quality carpet and in each color or pattern 

covered by the contract, with the clear 

understanding that the Government reserves 

the right at its option to request one 

additional 18 inch by 24 inch sample in any 

one or all qualities in each pattern and/or 

color specified, and the Contractor agrees to 

honor such request. These samples will be 

returned at the Contractor’s expense after 

expiration of the contract provided they have 

not been consumed as a result of the 

Government’s sample requirements. 

(b) Each individual sample, or cutting, 

shall bear the Contractor’s name, 

manufacturer’s name, brand or quality name, 

pattern or color number and name, and the 

National Stock Number. 

(End of clause) 

4618 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 

552.238–41 Guaranteed Minimum (I–FSS– 

106). 

As prescribed in 538.1203(c)(21), 

insert the following clause: 

GUARANTEED MINIMUM (I–FSS–106) 

(DATE) 

The minimum that the Government agrees 

to order during the period of this contract is 

$2,500. If the Contractor receives total orders 

for less than $2,500 during the term of the 

contract, the Government will pay the 

difference between the amount ordered and 

$2,500: 

(a) Payment of any amount due under this 

clause shall be contingent upon the 

Contractor’s timely submission of GSA Form 

72A reports (see GSAR 552.238–74 

‘‘Industrial Funding Fee and Sales 

Reporting’’) during the period of the contract 

and receipt of the close-out sales report 

pursuant to GSAR 552.238–74. 

(b) The guaranteed minimum applies only 

if the contract expires or contract 

cancellation is initiated by the Government. 

The guaranteed minimum does not apply if 

the contract is terminated for cause or if the 

contract is canceled at the request of the 

Contractor. 

(End of clause) 

552.238–42 Restriction on the Acceptance 

of Orders (I–FSS–107). 

As prescribed in 538.1203(c)(22), 

insert the following clause: 

RESTRICTION ON THE ACCEPTANCE 

OF ORDERS (I–FSS–107) (DATE) 

No orders shall be accepted from, and no 

deliveries shall be made to any ship of the 

United States Navy or the Military Sealift 

Command. This prohibition shall include all 

electrostatic copying equipment, supplies 

(toner, developer, fuser oil) for such 

equipment, repair or replacement parts for 

such equipment, and maintenance or repair 

service for such equipment. 

(End of clause) 

552.238–43 Clauses for Overseas 

Coverage (I–FSS–108). 

As prescribed in 538.1203(c)(23), 

insert the following clause: 

CLAUSES FOR OVERSEAS COVERAGE 

(I–FSS–108) (DATE) 

The following clauses apply to overseas 

coverage: 

(a) 52.214–34, Submission of Offers in the 

English Language. 

(b) 52.214–35, Submission of Offers in U.S. 

Currency. 

(c) 52.247–34, FOB Destination. 

(d) 52.247–38, FOB Inland Carrier, Country 

of Exportation. 

(e) 52.247–39, FOB Inland Point, Country 

of Importation. 

(f) 552.238–25, Characteristics of Electric 

Current (C–FSS–412). 

(g) 552.238–29, Marking and 

Documentation Requirements Per Shipment 

(D–FSS–471). 

(h) 552.238–44, Transshipments (D–FSS– 

477). 

(i) 552.238–45, Delivery Prices (F–FSS– 

202–F). 

(j) 552.238–46, Foreign Taxes and Duties 

(I–FSS–314). 

(k) 552.238–47, Parts and Service (I–FSS– 

594). 

(End of clause) 

552.238–44 Transshipments (D–FSS–477). 

As prescribed in 538.1203(c)(23)(viii), 

insert the following clause: 

TRANSSHIPMENTS (D–FSS–477) 

(DATE) 

The Contractor shall complete TWO DD 

Forms 1387, Military Shipment Labels and, 

if applicable, four copies of DD Form 1387— 

2, Special Handling/Data Certification—used 

when shipping chemicals, dangerous cargo, 

etc. Two copies of the DD Form 1387 will be 

attached to EACH shipping container 

delivered to the port Transportation Officer 

for subsequent transshipment by the 

Government as otherwise provided for under 

the terms of this contract. These forms will 

be attached to one end and one side (NOT 

on the top or bottom) of the container. The 

Contractor will complete the bottom line of 

these forms, which pertains to the number of 

pieces, weight and cube of each piece, using 

U.S. weight and cubic measures. Weights 

will be rounded off to the nearest pound. 

(One kg = 2.2 U.S. pounds; one cubic meter 

= 35.3156 cubic feet.) In addition, if the cargo 

consists of chemicals, or is dangerous, one 

copy of the DD Form 1387–2 will be attached 

to the container, and three copies will be 

furnished to the Transportation Officer with 

the Bill of Lading. DANGEROUS CARGO 

WILL NOT BE INTERMINGLED WITH 

NONDANGEROUS CARGO IN THE SAME 

CONTAINER. Copies of the forms and 

preparation instructions will be obtained 

from the Ordering Office issuing the Delivery 

Order. Reproduced copies of the forms are 

acceptable. FAILURE TO INCLUDE DD 

FORMS 1387 (AND DD FORM 1387–2, IF 

APPLICABLE) ON EACH SHIPPING 

CONTAINER WILL RESULT IN REJECTION 

OF SHIPMENT BY THE PORT 

TRANSPORTATION OFFICER. 

(End of clause) 

552.238–45 Delivery Prices (F–FSS–202– 

F). 

As prescribed in 538.1203(c)(23)(ix), 

insert the following clause: 

DELIVERY PRICES (F–FSS–202–F) 

(DATE) 

(a) Prices offered must cover delivery to 

destinations as provided in this clause: 

(1) Direct delivery to consignee. F.O.B. 

Inland Point, Country of Importation (FAR 

52.247–39). (Offeror should indicate 

countries where direct delivery will be 

provided.) 

(2) Delivery to overseas assembly point for 

transshipment when specified by the 

ordering office, if delivery is not covered 

under paragraph (a) of this clause. 

(3) Delivery to the overseas port of entry 

when delivery is not covered under 

paragraphs (a) or (b) of this clause. 

(b) Offerors are requested to furnish the 

geographic area(s)/countries/zones which are 

intended to be covered: 

lllllllllllllllllllll

lllllllllllllllllllll

(End of clause) 

552.238–46 Foreign Taxes and Duties (I– 

FSS–314). 

As prescribed in 538.1203(c)(23)(x), 

insert the following clause: 

FOREIGN TAXES AND DUTIES (I–FSS– 

314) (DATE) 

Prices offered must be net, delivered, 

F.O.B. to the destinations accepted by the 

Government. 

(a) The Offeror warrants that such prices 

do not include any tax, duty, customs fees, 

or other foreign Governmental costs, 

assessments, or similar charges from which 

the U.S. Government is exempt. The Offeror 

further warrants that any applicable taxes 

duties, customs fees, other Government costs, 

assessments or similar charges from which 

the U.S. Government is not exempt are 

included in the prices quoted and that such 

prices are not subject to increases for any 

such charges applicable at the time of 

acceptance of this offer by the Government. 

(b) Standard commercial export packaging, 

including containerization, if necessary, 

packaging, preservation, marking are 

included in the pricing offered and accepted 

by the Government. 

(End of clause) 

552.238–47 Parts and Service (I–FSS–594). 

As prescribed in 538.1203(c)(23)(xi), 

insert the following clause: 

PARTS AND SERVICE (I–FSS–594) 

(DATE) 

(a) For equipment under items listed in the 

schedule of items or services on which offers 

are submitted, the Offeror certifies by 

submission of this offer that parts and 

services (including the performing of 

warranty or guarantee service) are now 

available from dealers or distributors serving 

the areas of ultimate overseas destination or 

that such facilities will be established and 

will be maintained throughout the contract 

period. If a new servicing facility is to be 

established, the facility shall be established 

no later than the beginning of the contract 

period. 

(b) Each Contractor shall be fully 

responsible for the services to be performed 

by the named servicing facilities, or by such 

facilities to be established, and fully 

guarantees performance of such services if 

the original service proves unsatisfactory. 

(c) Offerors are requested to include in the 

price list, the names and addresses of all 

supply and service points maintained in the 

geographic area in which the Contractor will 

perform. Please indicate opposite each point 

whether or not a complete stock of repair 

parts for items offered is carried at that point, 

and whether or not mechanical service is 

available. 

(End of clause) 

Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 4619 

552.238–48 English Language and U.S. 

Dollar Requirements (I–FSS–109). 

As prescribed in 538.1203(c)(24), 

insert the following clause: 

ENGLISH LANGUAGE AND U.S. 

DOLLAR REQUIREMENTS (I–FSS–109) 

(DATE) 

(a) All documents produced by the 

Contractor to fulfill requirements of this 

contract including, but not limited to, 

Federal Supply Schedule catalogs and price 

lists, must reflect all terms and conditions in 

the English language. 

(b) U.S. dollar equivalency, if applicable, 

will be based on the rates published in the 

‘‘Treasury Reporting Rates of Exchange’’ in 

effect as of the date of the agency’s purchase 

order or in effect during the time period 

specified elsewhere in this contract. 

(End of clause) 

552.238–49 Geographic Area Address of 

Supply and Service Point. 

As prescribed in 538.1203(c)(25), 

insert the following clause: 

GEOGRAPHIC AREA ADDRESS OF 

SUPPLY AND SERVICE POINT (DATE) 

It is desired to have available means for 

maintaining Government-owned items in 

satisfactory operating condition and to 

receive service at least as good as that 

extended to commercial customers. 

(End of clause) 

552.238–50 Option To Extend the Term of 

the Contract (Evergreen) (I–FSS–163). 

As prescribed in 538.1203(c)(26), 

insert the following clause: 

OPTION TO EXTEND THE TERM OF 

THE CONTRACT (EVERGREEN) (I– 

FSS–163) (DATE) 

(a) The Government may require continued 

performance of this contract for an additional 

5-year period when it is determined that 

exercising the option is advantageous to the 

Government considering price and other 

factors. The option clause may not be 

exercised more than three times. When the 

option to extend the term of this contract is 

exercised the following conditions are 

applicable: 

(1) It is determined that exercising the 

option is advantageous to the Government 

considering price and the other factors 

covered in paragraphs (a)(2) through (a)(4) of 

this clause). 

(2) The Contractor’s electronic catalog/ 

price list has been received, approved, 

posted, and kept current on GSA 

Advantage!® in accordance with clause 

552.238–15, Contract Price Lists (I–FSS–600). 

(3) Performance has been acceptable under 

the contract. 

(4) Subcontracting goals have been 

reviewed and approved. 

(b) The Contracting Officer may exercise 

the option by providing a written notice to 

the Contractor within 30 days, unless 

otherwise noted, prior to the expiration of the 

contract or option. 

(c) When the Government exercises its 

option to extend the term of this contract, 

prices in effect at the time the option is 

exercised will remain in effect during the 

option period, unless an adjustment is made 

in accordance with another contract clause 

(e.g., Economic Price Adjustment Clause or 

Price Reduction Clause). 

(End of clause) 

552.238–51 Scope of Contract (I–FSS– 

102). 

As prescribed in 538.1203(c)(27), 

insert the following clause: 

SCOPE OF CONTRACT (I–FSS–102) 

(DATE) 

This solicitation is issued to establish 

contracts which may be used on a 

nonmandatory basis by the agencies and 

activities named in this clause, as a source 

of supply for the supplies or services 

described herein, for delivery within 

*llll* and Washington, DC. 

(a) All Federal agencies and activities in 

the executive, legislative, and judicial 

branches. 

(b) Government Contractors authorized in 

writing by a Federal agency pursuant to 48 

CFR 51.1. 

(c) Mixed ownership Government 

corporations (as defined in the Government 

Corporation Control Act). 

(d) The Government of the District of 

Columbia. 

(e) Other activities and organizations 

authorized by statute or regulation to use 

GSA as a source of supply. (Questions 

regarding activities authorized to use this 

schedule should be directed to the 

Contracting Officer.) 

Articles or services may be ordered from 

time to time in such quantities as may be 

needed to fill any requirement, subject to the 

Order Limitations thresholds which will be 

specified in resultant contracts. Overseas 

activities may place orders directly with 

schedule Contractors for delivery to CONUS 

port or consolidation point. 

For orders received from activities within 

the executive branch of the Government, 

each Contractor is obligated to deliver all 

articles or services contracted for that may be 

ordered during the contract term, except as 

otherwise provided herein. 

The Contractor is not obligated to accept 

orders received from activities outside the 

executive branch; however, the Contractor is 

encouraged to accept such orders. If the 

Contractor is unwilling to accept such an 

order, the Contractor shall return it by 

mailing it or delivering it to the ordering 

office within 5 workdays from receipt. 

Failure to return an order shall constitute 

acceptance whereupon all provisions of the 

contract shall apply. 

The Government is obligated to purchase 

under each resultant contract a guaranteed 

minimum of one hundred dollars during the 

contract term. 

(End of clause) 

552.238–52 Option to Extend the Term of 

Contract for Period of One (1) Year (I–FSS– 

165). 

As prescribed in 538.1203(c)(28), 

insert the following clause: 

OPTION TO EXTEND THE TERM OF 

CONTRACT FOR PERIOD OF ONE (1) 

YEAR (I–FSS–165) (DATE) 

(a) The Government shall have the 

unilateral option of extending this contract 

for an additional twelve (12) months upon 

the same terms and conditions as are 

contained in this contract at the time said 

option is exercised. The total duration of this 

contract inclusive of the option period shall 

not exceed 24 months. 

(1) Said options shall be deemed to have 

been exercised upon formal written 

notification (mail or otherwise furnished) to 

the Contractor at least thirty (30) calendar 

days prior to the expiration of the contract. 

The Contracting Officer shall have given 

preliminary notice of the Government’s 

intention to extend at least ninety (90) 

calendar days before this contract is to 

expire. (Such a preliminary notice will not be 

deemed to commit the Government to 

exercise the option.) 

(2) Offerors are cautioned that the exercise 

of the option is a Government prerogative, 

not a contractual right on the part of the 

Contractor. If the Government exercises the 

option, the Contractor shall be contractually 

bound to perform the services for the option 

period, or in the event it fails to perform, be 

subject to the termination for default 

provisions of this contract. 

(b) If the option to extend is exercised by 

the Government, the contract price(s) may be 

adjusted upward or downward at that time in 

accordance with Section (b) of this clause. 

The Government will notify the Contractor of 

the percentage change in the Bureau of Labor 

Statistics (BLS) Producer Price Index when it 

becomes aware of the adjusting price index. 

(1) Definitions. As used in this provision. 

(i) The price index for the purpose of price 

adjustment for the option period shall be the 

originally released Producer Price Index 

stated in this clause, not seasonally adjusted, 

published by the Bureau of Labor Statistics, 

U. S. Department of Labor. The applicable 

Producer Price Index under Table *llll* 

is: 

Code number *llll*. 

Commodity *llll*. 

(ii) The base price index for the purpose of 

price adjustment shall be the originally 

released index listed in paragraph (b)(1)(A) of 

this clause for the month of the contract date; 

(iii) The term ‘‘contract date’’ means: 

(A) The date of bid opening in the case of 

sealed bid solicitations; 

(B) The date of award in the case of 

negotiated solicitations, except that with 

respect to any set-aside portion (Combined 

Small Business-Labor Surplus Area, Labor 

Surplus Area, or Small Business) of this 

solicitation, the date of bid opening for the 

non-set-aside portion, if sealed bid, or the 

date of award for the non-set-aside portion, 

if negotiated; or 

(C) The effective date(s) of the contract 

modification(s) adding line items to the 

contract. 

4620 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 

(iv) The ‘‘adjusting price’’ index shall be 

the originally released index listed in 

(b)(1)(A) of this clause for the ninth month 

of any twelve month contract or, if the 

contract period is less than twelve months, 

the month which would occur three full 

months before contract performance ends. 

(2) The original unit prices for supplies, as 

of the contract date, shall be subject to 

adjustment upward or downward by the 

percent of difference between the base price 

index and the adjusting price index. This 

price adjustment shall become effective on 

the date performance under the option period 

begins. If orders are issued under the 

contract, the adjustment shall apply only to 

those orders mailed to the Contractor after 

the date performance under the option period 

begins. 

(3) If base price index data are not available 

for the month in which the contract date 

occurs or if adjusting price index data are not 

available as specified in this clause, the 

month with the most recently published data 

before the contract date or the option exercise 

date, as applicable, shall be the basis for 

adjustment. 

(4) If any of the BLS series specified in this 

clause are discontinued, the Government 

shall determine a substitute series. If BLS 

designates an index with a new title and/or 

code number as being continuous with one 

of the indexes cited in this clause, the new 

index will be used. 

(5) Price adjustments pursuant to this 

provision will be made by contract 

modification issued by the Contracting 

Officer which will show the base price index, 

the adjusting price index, the percent of 

difference and the new contract price. 

(6) No adjustment will be made under this 

provision unless the total change in the 

contract amount is *llll* or more. 

(7) Increases shall not exceed 10 percent of 

the contract price as of the contract date. 

(End of clause) 

552.238–53 Option To Extend the Term of 

the Contract (I–FSS–167). 

As prescribed in 538.1203(c)(29), 

insert the following clause: 

OPTION TO EXTEND THE TERM OF 

THE CONTRACT (I–FSS–167) (DATE) 

(a) The Government may extend the term 

of this contract by written notice to the 

Contractor within the time specified in this 

clause; provided, that the Government shall 

give the Contractor a preliminary written 

notice of its intent to extend at least 60 days 

before the contract expires. The preliminary 

notice does not commit the Government to an 

extension. 

(b) If the Government exercises this option, 

the extended contract shall be considered to 

include this option provision. 

(c) The total duration of this contract, 

including the exercise of any options under 

this clause, shall not exceed 14 months. 

(d) Prices in effect at the end of the 12th 

month shall remain unchanged during the 

period of the extension. 

(End of clause) 

552.238–54 Federal Excise Tax (I–FSS– 

311). 

As prescribed in 538.1203(c)(30), 

insert the following clause: 

FEDERAL EXCISE TAX (I–FSS–311) 

(DATE) 

Prices offered shall exclude Federal Excise 

Tax. Ordering agencies will be notified that 

the Federal Excise Tax will be invoiced and 

paid for by them as a separate item based 

upon published Rubber Manufacturer’s 

Association average weights effective at time 

of delivery, unless the ordering activity is 

exempt from such tax. 

(End of clause) 

552.238–55 Contractor Partnering 

Arrangements (I–FSS–40). 

As prescribed in 538.1203(c)(31), 

insert the following clause: 

CONTRACTOR PARTNERING 

ARRANGEMENTS (I–FSS–40) (DATE) 

Contractors participating in contractor 

partnering arrangements must abide by all 

terms and conditions of their respective 

contracts. This includes compliance with 

contract clause 552.238–74, Industrial 

Funding Fee and Sales Reporting, i.e., each 

Contractor (partner member) must report 

sales and remit the IFF for all supplies and 

services provided under its individual 

contract. 

(End of clause) 

552.238–56 Performance Reporting 

Requirements (I–FSS–50). 

As prescribed in 538.1203(c)(32), 

insert the following clause: 

PERFORMANCE REPORTING 

REQUIREMENTS (I–FSS–50) (DATE) 

(a) This clause applies to all contracts 

estimated to exceed $100,000. 

(b) Unless notified otherwise in writing by 

the Contracting Officer, the Contractor may 

assume contract performance is satisfactory. 

(c) If negative performance information is 

submitted by customer agencies, the 

Contracting Officer will notify the Contractor 

in writing and provide copies of any 

complaints received. The Contractor will 

have 30 calendar days from receipt of this 

notification to submit a rebuttal and/or a 

report of corrective actions taken. 

(End of clause) 

552.238–57 Guarantee (I–FSS–546). 

As prescribed in 538.1203(c)(33), 

insert the following clause: 

GUARANTEE (I–FSS–546) (DATE) 

The Contractor guarantees the equipment 

furnished will be free from defects in 

material and workmanship for a period of not 

less than 1 year from date of delivery. All 

parts found defective within that period shall 

be replaced, with the cost of replacement, 

including shipping charges, to be borne by 

the Contractor. Under no circumstances will 

any equipment covered by this guarantee be 

returned without (a) advance written notice 

to the Contractor, or (b) obtaining shipping 

instructions from the Contractor. 

(End of clause) 

552.238–58 GSA Advantage!® (I–FSS–597). 

As prescribed in 538.1203(c)(34), 

insert the following clause: 

GSA ADVANTAGE!® (I–FSS–597) 

(DATE) 

(a) The Contractor must participate in the 

GSA Advantage!® online shopping service. 

Information and instructions regarding 

Contractor participation are contained in 

clause 552.238–59, Electronic Commerce— 

FACNET (I–FSS–599). 

(b) The Contractor also should refer to 

contract clauses 552.238–71, Submission and 

Distribution of Authorized FSS Schedule 

Price Lists (which provides for submission of 

price lists on a common-use electronic 

medium), 552.238–15, Contract Pricelists 

(I–FSS–600) (which provides information on 

electronic contract data), and 552.238–67, 

Modifications (Multiple Award Schedule) 

(currently 552.243–72) (which addresses 

electronic file updates). 

(End of clause) 

552.238–59 Electronic Commerce— 

FACNET (I–FSS–599). 

As prescribed in 538.1203(c)(35), 

insert the following clause: 

ELECTRONIC COMMERCE—FACNET 

(I–FSS–599) (DATE) 

(a) General Background. The Federal 

Acquisition Streamlining Act (FASA) of 1994 

establishes the Federal Acquisition Computer 

Network (FACNET) requiring the 

Government to evolve its acquisition process 

from one driven by paperwork into an 

expedited process based on electronic 

commerce/electronic data interchange 

(EC/EDI). EC/EDI means more than merely 

automating manual processes and 

eliminating paper transactions. It can and 

will help to move business processes (e.g., 

procurement, finance, logistics, etc.) into a 

fully electronic environment and 

fundamentally change the way organizations 

operate. 

(b) Trading Partners and Value-Added 

Networks (VAN’s). 

(1) Within the FACNET architecture, 

electronic documents (e.g., orders, invoices, 

etc.) are carried between the Federal 

Government’s procuring office and 

Contractors (now known as ‘‘trading 

partners’’). These transactions are carried by 

commercial telecommunications companies 

called Value-Added Networks (VAN’s). 

(2) EDI can be done using commercially 

available hardware, software, and 

telecommunications. The selection of a VAN 

is a business decision Contractors must 

make. There are many different VAN’s which 

provide a variety of electronic services and 

Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 4621 

different pricing strategies. If your VAN only 

provides communications services, you may 

also need a software translation package. 

(c) Registration Instructions. (1) DOD will 

require Contractors to register as trading 

partners to do business with the Government. 

This policy can be reviewed via the 

INTERNET at http://www.defenselink.mil/ 

releases/1999/b03011999_bt079-99.html. 

(2) To do EDI with the Government, 

Contractors must register as a trading partner. 

Contractors will provide regular business 

information, banking information, and EDI 

capabilities to all agencies in this single 

registration. A central repository of all 

trading partners, called the Central 

Contractor Registration (CCR) http:// 

www.ccr.gov/, has been developed. All 

Government procuring offices and other 

interested parties will have access to this 

central repository. The database is structured 

to identify the types of data elements which 

are public information and those which are 

confidential and not releasable. 

(3) To register, Contractors must provide 

their Dun and Bradstreet (DUNS) number. 

The DUNS number is available by calling 1 

(800) 333–0505. It is provided and 

maintained free of charge and only takes a 

few minutes to obtain. Contractors will need 

to provide their Tax Identification Number 

(TIN). The TIN is assigned by the Internal 

Revenue Service by calling 1 (800) 829–1040. 

Contractors will also be required to provide 

information about company bank or financial 

institution for electronic funds transfer (EFT). 

(4) Contractors may register through online 

at http://www.ccr.gov/ or through their Value 

Added Network (VAN) using an American 

National Standards Institute (ANSI) ASC X12 

838 transaction set, called a ‘‘Trading Partner 

Profile.’’ A transaction set is a standard 

format for moving electronic data. VAN’s will 

be able to assist Contractors with registration. 

(d) Implementation Conventions. All EDI 

transactions must comply with the Federal 

Implementation Conventions (IC’s). Many 

VAN’s and software providers have already 

built the IC requirements into their supplies. 

If you need to see the IC’s, they are available 

on a registry maintained by the National 

Institute of Standards and Technology 

(NIST). It is accessible via the INTERNET at 

http://www.itl.nist.gov/lab/csl-pubs.htm. IC’s 

are available for common business 

documents such as Purchase Order, Price 

Sales Catalog, Invoice, Request for Quotes, 

etc. 

(e) Additional Information. GSA has 

additional information available for 

Contractors who are interested in starting to 

use EC/EDI. Contact the Contracting Officer 

for a copy of the latest handbook. Several 

resources are available to Contractors to 

assist in implementing EC/EDI; specific 

addresses are available in the handbook or 

from the Contracting Officer: 

(1) Electronic Commerce Resource Centers 

(ECRC’s) are a network of U.S. Government 

sponsored centers that provide EC/EDI 

training and support to the Contractor 

community. They are found in over a dozen 

locations around the country. 

(2) Procurement Technical Assistance 

Centers (PTAC’s) and Small Business 

Development Centers (SBDC’s) provide 

management assistance to small business 

owners. Each state has several locations. 

(3) Most major U.S. cities have an EDI user 

group of companies who meet periodically to 

share information on EDI related subjects. 

(f) GSA Advantage!®. (1) GSA Advantage!®

will use this FACNET system to receive 

catalogs, invoices and text messages; and to 

send purchase orders, application advice, 

and functional acknowledgments. GSA 

Advantage!® enables customers to: 

(i) Perform database searches across all 

contracts by manufacturer; manufacturer’s 

model/part number; Contractor; and generic 

supply categories: 

(ii) Generate their own EDI delivery orders 

to Contractors, generate EDI delivery orders 

from the Federal Supply Service to 

Contractors, or download files to create their 

own delivery orders; and 

(iii) Use the Federal IMPAC VISA. 

(2) GSA Advantage!® may be accessed via 

the GSA Home Page. The Internet address is: 

http://www.gsa.gov, or http:// 

www.fss.gsa.gov. 

(End of clause) 

552.238–60 Performance Incentives 

(I–FSS–60). 

As prescribed in 538.1203(c)(36), 

insert the following clause: 

PERFORMANCE INCENTIVES (I–FSS– 

60) (DATE) 

(a) Performance incentives may be agreed 

upon between the Contractor and the 

ordering office on individual orders or 

Blanket Purchase Agreements under this 

contract in accordance with this clause. 

(b) The ordering office must establish a 

maximum performance incentive price for 

these services and/or total solutions, on 

individual orders or Blanket Purchase 

Agreements. 

(c) Incentives should be designed to relate 

results achieved by the Contractor to 

specified targets. To the maximum extent 

practicable, ordering offices shall consider 

establishing incentives where performance is 

critical to the agency’s mission and 

incentives are likely to motivate the 

Contractor. Incentives shall be based on 

objectively measurable tasks. 

(End of clause) 

552.238–61 Price Lists/Brochures for NonCommercial Items (I–FSS–602). 

As prescribed in 538.1203(c)(37), 

insert the following clause: 

PRICE LISTS/BROCHURES FOR NONCOMMERCIAL ITEMS (I–FSS–602) 

(DATE) 

(a) Each Contractor shall furnish price lists 

containing reproductions of actual 

photograph(s) or line drawing(s) of the items 

awarded. These price lists are to be sent to 

the list of addressees which will be provided, 

after formal approval of the price list format, 

by the Contracting Officer. 

(b) Only those items awarded under this 

contract shall be shown in the price lists or 

catalogs for these items. Commercial 

advertising or sales promotional language is 

not permitted. As the price lists become one 

of the primary working tools of agencies, it 

is important that they accurately portray the 

contract items. 

(c) The cover page format, certification and 

distribution for these items shall be in 

accordance with paragraph (b) of 552.238–15, 

Contract Price Lists (I–FSS–600). 

(End of clause) 

552.238–62 Office Copier Utilization 

Guidelines (I–FSS–624). 

As prescribed in 538.1203(c)(38), 

insert the following clause: 

OFFICE COPIER UTILIZATION 

GUIDELINES (I–FSS–624) (DATE) 

(a) Ordering offices using this Federal 

Supply Schedule should select the 

appropriate and most economical copier 

equipment and/or plans for the application 

intended. The selection process should 

include a review of the functional and 

financial advantage of all available copying 

processes. FAR 7.4, Equipment Lease or 

Purchase, provides guidance in determining 

whether equipment should be acquired by 

lease or purchase; (FAR 8.404 provides 

ordering procedures applicable to Federal 

Supply Schedules). 

(b) Pursuant to a recommendation of the 

General Accounting Office and in order to 

assist ordering offices in this evaluation, 

office copying machine Contractors are 

requested to include in their authorized price 

lists specific factual and objective 

information concerning the productivity and 

supply use associated with each copier. Such 

information should relate to the price of 

equipment and/or plans, price of supplies, 

rates of consumption, machine production 

rate, etc., and may include price-per-copy 

computations. The information furnished 

should be predicated upon equipment and 

supplies at prices awarded on the schedule 

contract. Supply costs should be based on the 

use of supplies offered by the Contractor for 

the specific model. Contractors should state 

all assumptions and the basis for their 

calculations. 

(c) The principal value of the information 

requested will be to expedite the selection of 

the appropriate and most economical 

equipment and/or plan. This will largely 

depend upon the clarity and reliability of the 

information furnished. The Contractor 

should state that all calculations are his own 

and that he is solely responsible for their 

accuracy. 

(End of clause) 

552.238–63 Preference for Small Business 

Concerns (I–FSS–90). 

As prescribed in 538.1203(c)(39), 

insert the following clause: 

PREFERENCE FOR SMALL BUSINESS 

CONCERNS (I–FSS–90) (DATE) 

Offerors are advised that the following 

statement will be included in the resultant 

Federal Supply Schedule: Where two or more 

4622 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 

items at the same delivered price will meet 

the ordering agency’s needs equally well, 

selection should be based on preference for 

the item of a small business concern that is 

also a labor surplus area concern. In making 

a selection on that basis, the same order of 

priority shall be used as that established for 

processing equal low bids in FAR 14.408–6. 

In making such a selection, the information 

in the Federal Supply Schedule as to the 

business size status or points of production 

of Contractors may be used for preliminary, 

but not conclusive, determination as to 

whether small business policies might be 

furthered through preferential award of the 

order. The extent to which additional and 

current information is obtained by an 

ordering agency is left to the discretion of the 

agency which should take into account the 

size of the order and other factors which the 

agency considers pertinent. 

(End of clause) 

552.238–64 Imprest Funds (Petty Cash) 

(I–FSS–918). 

As prescribed in 538.1203(c)(40), 

insert the following clause: 

IMPREST FUNDS (PETTY CASH) (I– 

FSS–918) (DATE) 

The Contractor agrees to accept cash 

payment for purchases made under the terms 

of the contract in conformance with Federal 

Acquisition Regulation (FAR) 13.305. 

(End of clause) 

552.238–65 Commercial Sales Practices 

Format—Supplies and/or Services With an 

Established Catalog Price (CSP–1). 

As prescribed in 538.1203(c)(41), 

insert the following clause: 

COMMERCIAL SALES PRACTICES 

FORMAT—SUPPLIES AND/OR 

SERVICES WITH AN ESTABLISHED 

CATALOG PRICE (CSP–1) (DATE) 

(a) Instructions for completing the 

commercial sales practices format: 

(1) Provide information required in this 

clause in accordance with these instructions 

that is, to the best of your knowledge and 

belief, current, accurate, and complete on the 

date the offer is signed. 

(2) Notify the contracting officer of any 

changes to catalog price or practices for 

discounts and/or concessions which occur 

after the date the offer is signed but before 

the close of negotiations. 

(3) Provide discount information by model/ 

supply line and/or service when discounts 

vary, as appropriate. 

(4) When proposed services are subject to 

the Service Contract Act (SCA) of 1965, as 

amended, and pricing is equal to or higher 

than the appropriate wage determination, 

follow the format under (c)(5) of this clause. 

All wage determinations are included within 

the solicitation and follow procedures under 

FAR 22.10. If commercial labor category titles 

and duties/functions do not match the wage 

determination titles and duties/functions, 

then provide a ‘‘cross walk’’ to match up the 

titles and duties/functions. 

(5) The Contracting Officer may ask for 

additional information to demonstrate that 

the products and/or services offered meet the 

definition of a commercial item and/or to 

determine whether the offered price(s) is fair 

and reasonable. When additional information 

is requested, the Contracting Officer will 

limit the request to information needed to 

complete the review. 

(b) Guidance for completing (c)(5) is as 

follows: 

Column 1—Customer (e.g., a single 

customer or group). 

‘‘Customer’’ or category of customer—The 

term customer includes, but is not limited to 

original equipment manufacturers (OEM), 

value added resellers (VARS), state and local 

Governments, distributors, educational 

institutions (an elementary, junior high, or 

degree granting school which maintains a 

regular faculty and established curriculum 

and an organized body of students), dealers, 

national accounts, and end users. As further 

clarification, distributors only sell to dealers/ 

reseller/VARS; who only sell to end users. 

Column 2—Base/Standard discount (%). 

Indicate the best discount or range of 

discounts* given to the customer identified 

on column 1 (based on written discounting 

policies or standard commercial practices in 

the event they are not written discounting 

policies) and identify the catalog, price list, 

schedule, or other document the discount 

was given from without regard to quantity; 

terms and conditions of the agreements 

under which the discounts are given; and 

whether the agreements are written or oral. 

If the discount disclosed is a combination 

of various discounts (prompt payment, FOB, 

etc.), separate the percentage for each type of 

discount. If the pricing document from which 

the discount was given to the customer 

identified in column 1 is different than the 

pricing document submitted upon which the 

offer is based, provide a copy of the pricing 

document to expedite the evaluation process. 

Note: The intent is that the Offeror may 

have base/standard discounts, quantity/ 

volume discounts, or both. Provide the 

discount information using the definitions of 

those columns as guidance. 

* If a range of discounts is offered 

commercially, provide an explanation. 

Column 3—Quantity/Volume Discount 

(%). 

Insert the minimum quantity or sales 

volume which the identified customer must 

either purchase/order, per order or within a 

specified time period, to earn the discount. 

In addition, provide the terms necessary to 

obtain the minimum quantity or sales 

volume. 

Column 4–FOB Term (Origin/Destination) 

See FAR 47.3 for an explanation of FOB 

delivery terms. 

For supplies, identify the shipping term 

necessary for the customer identified in 

column 1 to achieve the discount. 

For services, performance will be assumed 

to be at the government facility, unless 

otherwise stated. 

Column 5—Other Concessions (e.g., 

Prompt Payment, etc.) 

Identify other concessions and discounts 

offered to the customer identified in column 

1 to include, but not limited to, prompt 

payment, freight allowances, extended 

warranties, extended price guarantees, free 

installation, bonus goods, rebates, purchase 

option credits, etc. 

Discounts and concessions are defined in 

solicitation clause 552.212–70, Preparation of 

Offers (Multiple Award Schedule). 

If the space provided is inadequate, the 

disclosure should be made on a separate 

sheet by reference. 

(c) Commercial Sales Practices FormatSupplies and/or Services with an Established 

Catalog List. 

(1) Name of Offerorllllll (SINs) 

llllll 

Note: Provide the following information for 

each SIN (or SINs for which information is 

the same). If discount information is different 

for SINs offered, duplicate this format. 

(2) Provide the dollar value of sales to the 

general public at or based on an established 

catalog or market price during the previous 

12-month period: $llll. 

State the beginning and ending of the 12 

month period. Beginningllll, 

endingllll. 

(3) Show your total projected annual sales 

for each SIN offered. If a current Federal 

Supply Schedule Contractor for the SIN, use 

the previous 12 months of sales under the 

contract. If NOT a current Schedule 

Contractor, base projected sales on the 

previous 12 months of sales to the general 

public. Identify the basis of the projected 

sales. 

SINllllll $llllll 

SINllllll $llllll 

SINllllll $llllll 

(4) Provide the discount, including 

concessions being offered in response to this 

solicitation:llllll 

Based on written discounting policies 

(standard commercial practices in the event 

they are not written discounting policies), are 

the discounts and/or concessions, in any 

combination, which are being offered under 

this solicitation equal to or better than the 

best price offered to any customer acquiring 

the same items regardless of quantity or 

terms and conditions? 

YESll NOll 

If yes, provide, in its entirety the data in 

paragraph (c)(5) of this clause, ONLY for the 

commercial customer with the greatest 

discount, including concessions. 

If no, provide in its entirety, the data in 

paragraph (c)(5) of this clause, for ALL 

commercial customer(s) who receive the 

discounts and/or concessions, in any 

combination, that are equal to or greater than 

offered in response to this solicitation. In 

addition, provide an explanation of why the 

discounts and/or concessions are not being 

offered. 

(5) Based on written discounting policies 

(standard commercial practices in the event 

they are not written discounting policies), 

provide information as requested for each 

SIN (or group of SINs for which the 

information is the same), or in an equivalent 

format developed by the Offeror. Rows 

should be added to accommodate as many 

customers as required: 

Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 4623 

Column 1 customer (e.g., a single customer or group) 

Column 2 

base/standard 

discount (%) 

(Note: if there 

is a base discount and a 

volume discount, disclose 

both on the 

same row.) 

Column 3 

quantity/volume discount 

(%) 

Column 4 FOB 

term (origin/ 

destination) 

Column 5 

other concessions and discounts (e.g., 

prompt payment, etc.) in 

any combination. 

(6) Do any deviations from your written 

discounting policies (standard commercial 

practices in the event they are not written 

discounting policies), in any combination, 

disclosed in the (5) above ever result in better 

discounts (lower prices) or concessions than 

indicated? YESll NOll. If yes, provide 

an explanation of the circumstances under 

which you deviate from your written policies 

or standard commercial sales practices 

disclosed in the chart and explain how often 

they occur. 

Your explanation should include a 

discussion of situations that lead to 

deviations from standard practice, an 

explanation of how often they occur 

(frequency), and the controls you employ to 

assure the integrity of your pricing. Examples 

of typical deviations may include, but are not 

limited to, one time goodwill discounts to 

charity organizations or to compensate an 

otherwise disgruntled customer; a limited 

sale of obsolete or damaged goods; the sale 

of sample goods to a new customer; or the 

sales of prototype goods for testing purposes. 

(d) If other than the manufacturer, i.e., 

dealer/reseller, without significant sales to 

the general public: 

(1) Provide manufacturers’ information 

required by paragraphs (c)(1) through (6) of 

this clause for each item/SIN offered, if the 

manufacturer’s sales under any resulting 

contract are expected to exceed $500,000. 

(2) Obtain written authorization from the 

manufacturer(s) that grants the Contracting 

Officer or an authorized government 

representative access, at any time before 

award or before agreeing to a modification, to 

the manufacturer’s sales records for the 

purpose of verifying the information 

submitted by the manufacturer. 

(3) The contracting officer may require the 

information be submitted on electronic 

media with commercially available 

spreadsheet(s). The information may be 

provided by the manufacturer directly to the 

Government. If the manufacturer’s item(s) is 

being offered by multiple dealers/resellers, 

only one copy of the requested information 

should be submitted to the Government, at a 

minimum, the commercial sales data must be 

updated annually. 

(4) The Offeror must submit the following 

pricing information along with a listing of 

contact information regarding each of the 

manufacturers whose products included in 

the offer (include the manufacturer’s name, 

address, the manufacturer’s contact point, 

telephone number, and FAX number) for 

each model offered by SIN: 

(i) Manufacturer’s Name. 

(ii) Manufacturer’s Part Number. 

(iii) Dealer’s/Reseller’s Part Number. 

(iv) Product Description. 

(v) Manufacturer’s List Price. 

(vi) Dealer’s/Reseller’s percentage discount 

from list price or net prices. 

(vii) Proposed price excluding IFF. 

(viii) Proposed discount from 

manufacturer’s list price. 

(ix) Proposed price including IFF 

(calculation: proposed price divided by (1 

minus IFF rate)). 

(End of clause) 

552.238–66 Commercial Sales Practices 

Format—Supplies and/or Services with 

Market Pricing Without an Established 

Catalog Price (CSP–2). 

As prescribed in 538.71(c)(42), insert 

the following clause: 

COMMERCIAL SALES PRACTICES 

FORMAT—SUPPLIES AND/OR 

SERVICES WITH MARKET PRICING 

WITHOUT AN ESTABLISHED 

CATALOG PRICE (CSP–2) (DATE) 

(a) Instructions for completing the 

commercial sales practices format. 

(1) Provide information required of this 

clause in accordance with these instructions 

that is, to the best of your knowledge and 

belief, current, accurate, and complete on the 

date the offer is signed. 

(2) Notify the contracting officer of any 

changes to pricing, terms or conditions that 

occur after the date the offer is signed, but 

before the close of negotiations. 

(3) If pricing varies by line item, the 

information must be submitted per line item. 

(4) When proposed line item(s) is subject 

to the Service Contract Act (SCA) of 1965, as 

amended, and pricing is equal to or higher 

than the appropriate wage determination, 

follow the format under paragraph (c)(4) of 

this clause. All wage determinations are 

included within the solicitation and follow 

procedures under FAR 22.10. If commercial 

labor category titles and duties/functions do 

not match the wage determination titles and 

duties/functions, then provide a ‘‘cross walk’’ 

to match up the titles and duties/functions. 

(5) The Contracting Officer may ask for 

additional information to demonstrate that 

the line item(s) offered meets the definition 

of a commercial item and/or to determine 

whether the offered price(s) is fair and 

reasonable. When additional information is 

requested, the Contracting Officer will limit 

the request to information needed to 

complete the review. 

(b)(1) Guidance for completing (b)(2) of this 

section, disclosures for supplies and/or 

services: 

Column 1—Customer. 

‘‘Customer’’ or category of customer—The 

term customer includes, but is not limited to 

original equipment manufacturers (OEM), 

value added resellers (VARS), state and local 

Governments, distributors, educational 

institutions (an elementary, junior high, or 

degree granting school which maintains a 

regular faculty and established curriculum 

and an organized body of students), dealers, 

national accounts, and end users, as 

applicable. For Offerors proposing supplies, 

as further clarification, distributors only sell 

to dealers/resellers/VARS; who only sell to 

end users. 

Column 2—Contract/Agreement Number. 

Indicate the contract/agreement number 

that corresponds with the pricing 

information being provided. 

Columns 3—Type of Contract/Agreement. 

Indicate if the referenced contract/ 

agreement is a firm, fixed price (FFP); firm, 

fixed price with economic price adjustment 

(FFP EPA), etc. 

Column 4—Contract/Agreement Period. 

Provide the initial award date and end 

date. If options were part of the original 

award, indicate the option(s) periods 

independently. 

Column 5—Acted as a Prime or a Sub on 

the Contract/Agreement. 

State in what capacity, prime or sub, the 

Offeror acted as on the referenced contract/ 

agreement. 

Column 6—Customer Point of Contact and 

Contact Information. 

Provide the contact information for the 

purchaser/buyer for the referenced contract/ 

agreement. 

(2) Previous commercial contract 

information: 

4624 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 

Contract Column 1 

Customer 

Column 2 

Contract/ 

agreement 

number 

Column 3 

Type of contract/agreement (ex., firm 

fixed price, 

cost plus, etc.) 

Column 4 

Contract/ 

agreement period 

Column 5 

Acted as 

prime or sum 

on contract 

agreement 

Column 6 

Customer 

point of contact and contact information 

1 

2 

3 

(c)(1) Guidance for completing (c)(2) of this 

section, disclosures for services ONLY: 

Column 1—Labor Category or Title. 

Provide the title of the labor category that 

is being proposed, as awarded under the 

referenced contract/agreement from (c)(4). 

Column 2-Experience/Education/ 

Certification Level. 

Indicate the level of experience, education 

(degree) and/or certification associated with 

the proposed labor category or title. (e.g., 7– 

10 yrs/BA/BS/MBA/Level III). 

Columns 3A–3C Billed Rates. 

Indicate the lowest net billable rate offered 

to any commercial customer at Offeror site 

and/or other than Offeror site in the 

appropriate columns of this clause. ‘‘Billed 

Rates’’ means fully, loaded/burdened rates 

which may be indicated on the invoice to the 

customer listed in (c)(4). In the event the 

Offeror does not have significant commercial 

sales, provide disclosures for government 

sales. As used in this solicitation, 

‘‘commercial sales’’ are defined as sales to 

the general public, including state and local 

government. Unit of measure is hourly rate. 

If the billable rates being offered to the 

government under this solicitation are equal 

to or lower than the lowest net billable rate 

offered to any commercial customer, then fill 

in column 3A only. 

If the billable rates being offered to the 

government under this solicitation are not 

equal to or lower than the lowest net billable 

rate offered to any commercial customer, 

provide an explanation and complete 

columns 3A, 3B and 3C. 

Column 4—Discount, If Offered. 

Insert the discount, if any, being offered off 

the lowest net billable rate. 

Column 5—Rate Offered to FSS (Excluding 

IFF). 

Insert the rate for the labor category/title 

that is being proposed. This does not include 

the Industrial Funding Fee. 

Column 6—Rate Offered to FSS (Including 

IFF). 

Insert the rate for the labor category/title 

that is being proposed. This includes the 

Industrial Funding Fee. 

Note: The correct method for calculating 

the IFF is: 

Proposed FSS rate/(1 minus the applicable 

IFF) = correct calculated proposed FSS Rate. 

Example: FSS rate = $100.00. IFF = 0.75%. 

$100.00 / (1¥.0075) = $100.00 / .9925 = 

$100.7556 which rounds to $100.76. 

(2) Commercial Sales Practices Format— 

Services with Market Prices without an 

Established Catalog Price. 

(1) Name of Offeror lllll SIN(s) 

lllll. 

Note: Provide the following information for 

each SIN (or SINs for which information is 

the same). For each SIN with different 

services, the Offeror must duplicate this 

format. 

(2) Provide the total dollar sales for all 

customers, including government, for the 

most recently available 12-month period: $. 

The beginning and ending of the 12-month 

period. Beginning lllll, ending 

lllll. 

(3) For each SIN being proposed, provide 

the actual sales for the most recent available 

12-month period: 

The beginning and ending of the 12-month 

period. Beginning lllll, ending 

lllll. 

SIN lllllllllllllllllll

Commercial Sales llllllllllll

Federal Government Sales llllllll

(4) Show your total projected annual sales 

for each SIN offered. If a current Federal 

Supply Schedule Contractor for the SIN, use 

the previous 12 months of sales under the 

contract. If NOT a current Schedule 

Contractor, base projected sales on the 

previous 12 months of sales to the general 

public. Identify the basis of the projected 

sales. 

SINllllll $llllll 

SINllllll $llllll 

SINllllll $llllll 

LABOR RATE INFORMATION: 

SIN(s): lllllllllllllllll

Column 1 Customer Column 2 

Experience/ 

education 

cert. level 

Column 3A 

Contract/ 

agreement 1 

billed rates 

Column 3B 

Contract/ 

agreement 2 

billed rates 

Column 3C 

Contract/ 

agreement 3 

billed rates 

Column 4 

Discount, 

if offered 

Column 5 

Rate offered to 

FSS (excluding IFF) 

Column 6 

Rate offered to 

FSS (including 

IFF) 

Labor category or title Experience/ 

education/cert. 

level 

Offeror site/ 

other than offeror site 

Offeror site/ 

other than offeror site 

Offeror site/ 

other than offeror site 

Percent (%) Offeror site/ 

other than offeror site 

Offeror site/ 

other than offeror site 

Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 4625 

(d)(1) Guidance for completing (d)(2) of 

this section, disclosures for flat rate services 

and/or supplies ONLY: 

Column 1—Title of flat rate services and/ 

or supplies. 

Under this solicitation, ‘‘flat rate’’ is 

defined as comprehensive, fixed pricing that 

includes all elements of the proposed supply 

and/or service and is not based on an 

established catalog price. 

Provide the title of the flat rate services 

and/or supplies that are being proposed, as 

awarded under the referenced contract/ 

agreement from (b). 

Column 2—Itemized description of tasks, 

outcome, or supply. 

Provide a concise description of the end 

deliverable, as awarded under the referenced 

contract/agreement from (b). This could 

include descriptive literature, reports, etc. 

Columns 3A–3C Contract/Agreement 

Billed Pricing. 

If offering flat rate services, indicate the 

lowest net billable price offered to any 

commercial customer at Offeror site and/or 

other than Offeror site in the appropriate 

columns of this clause, as awarded under the 

referenced contract/agreement from (b). 

If offering flat rate supplies, indicate the 

lowest net billable price offered to any 

commercial customer at FOB terms under the 

appropriate column, as awarded under the 

referenced contract/agreement from (b). 

If the billable prices being offered to the 

government under this solicitation are equal 

to or lower than the lowest net billed price 

offered to any commercial customer, then fill 

in column 3A only. 

If the billable prices being offered to the 

government under this solicitation are not 

equal to or lower than the lowest net billable 

price offered to any commercial customer, 

provide an explanation and complete 

columns 3A, 3B and 3C. 

Column 4—Discount, If Offered. 

Insert the discount, if any, being offered off 

the lowest net billable rate. 

Column 5—Rate Offered to FSS (Excluding 

IFF). 

Insert the pricing for the service and/or 

supply that is being proposed. This does not 

include the Industrial Funding Fee. 

Column 6—Rate Offered to FSS (Including 

IFF). 

Insert the pricing for the service and/or 

supply that is being proposed. This includes 

the Industrial Funding Fee. 

Note: The correct method for calculating 

the IFF is: 

Proposed FSS pricing / (1 minus the 

applicable IFF) = correct calculated proposed 

FSS price. 

Example: 

FSS pricing = $100.00. 

IFF = 0.75%. 

$100.00 / (1-.0075) = $100.00 / .9925 = 

$100.7556, which rounds to $100.76. 

(d)(2) Commercial Sales Practices Format— 

Flat Rate Services and/or Supplies with 

Market Prices without an Established Catalog 

Price. 

(1) Name of Offeror llllll SIN(s) 

llllll. 

Note: Provide the following information for 

each SIN (or SINs for which information is 

the same). For each SIN with different 

services, the Offeror must duplicate this 

format. 

(2) Provide the total dollar sales for all 

customers, including government, for the 

most recently available 12-month period: 

$llll. The beginning and ending of the 

12-month period. Beginning llll, ending 

llll. 

(3) For each SIN being proposed, provide 

the actual sales for the most recent available 

12-month period: 

The beginning and ending of the 12-month 

period. Beginning llll, ending llll. 

SIN sales llllllllllllllll

Commercial Sales llllllllllll

Federal Government Sales llllllll

(4) Show your total projected annual sales 

for each SIN offered. If a current Federal 

Supply Schedule Contractor for the SIN, use 

the previous 12 months of sales under the 

contract. If NOT a current Schedule 

Contractor, base projected sales on the 

previous 12 months of sales to the general 

public. Identify the basis of the projected 

sales. 

SIN llllll $ llllll 

SIN llllll $ llllll 

SIN llllll $ llllll 

(5) FLAT RATE SERVICES AND/OR 

SUPPLIES INFORMATION: 

SIN(s): llllll. 

BILLING CODE 6820–61–P 

4626 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 

BILLING CODE 6820–61–C 

(End of clause) 

552.243–72 [Redesignated as 552.238–67 

and Revised] 

15. Redesignate section 552.243.72 as 

section 552.238–67 and revise it to read 

as follows: 

552.238–67 MODIFICATIONS (MULTIPLE 

AWARD SCHEDULE). 

As prescribed in 538.1203(c)(43), 

insert the following clause: 

MODIFICATIONS (MULTIPLE 

AWARD SCHEDULE) (DATE) 

(a) General. The Contractor may request a 

contract modification by submitting a request 

to the Contracting Officer for approval, 

except as noted in paragraph (d) of this 

clause. At a minimum, every request shall 

describe the proposed change(s) and provide 

the rationale for the requested change(s). 

(b) Types of Modifications. (1) Additional 

items/additional SIN’s. When requesting 

additions, the following information must be 

submitted: 

(i) Information requested in paragraphs (1) 

and (2) of the Commercial Sales Practice 

Format to add SIN’s. 

(ii) Discount information for the new 

items(s) or new SIN(s). Specifically, submit 

the information requested in paragraphs 3 

through 5 of the Commercial Sales Practice 

Format. If this information is the same as the 

initial award, a statement to that effect may 

be submitted instead. 

(iii) Information about the new item(s) or 

the item(s) under the new SIN(s) as described 

in 552.238–96, Preparation of Offer (Multiple 

Award Schedule) is required. 

(iv) Delivery time(s) for the new item(s) or 

the item(s) under the new SIN(s) must be 

submitted in accordance with 552.238–95, 

Commercial Delivery Schedule (Multiple 

Award Schedule). 

(v) Production point(s) for the new item(s) 

or the item(s) under the new SIN(s) must be 

submitted if required by 52.215 6, Place of 

Performance. 

(vi) Hazardous Material information (if 

applicable) must be submitted as required by 

52.223 3 (ALT I), Hazardous Material 

Identification and Material Safety Data. 

(vii) Any information requested by 52.212 

3(f), Offeror Representations and 

Certifications—Commercial Items, that may 

be necessary to assure compliance with FAR 

52.225 1, Buy American Act-Balance of 

Payments Programs—Supplies. 

(2) Deletions. The Contractors shall provide 

an explanation for the deletion. The 

Government reserves the right to reject any 

subsequent offer of the same item or a 

substantially equal item at a higher price 

during the same contract period, if the 

Contracting Officer finds the higher price to 

be unreasonable when compared with the 

deleted item. 

(3) Price Reduction. The Contractor shall 

indicate whether the price reduction falls 

under the item (i), (ii), or (iii) of paragraph 

(c)(1) of the Price Reductions clause at 

552.238–75. If the Price reduction falls under 

item (i), the Contractor shall submit a copy 

of the dated commercial price list. If the price 

reduction falls under item (ii) or (iii), the 

Contractor shall submit a copy of the 

applicable price list(s), bulletins or letters or 

customer agreements which outline the 


EP26JA09.000</GPH>
Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 4627 

effective date, duration, terms and conditions 

of the price reduction. 

(c) Effective dates. The effective date of any 

modification is the date specified in the 

modification, except as otherwise provided 

in the Price Reductions clause at 552.238–75. 

(d) Electronic File Updates. The Contractor 

shall update electronic file submissions to 

reflect all modifications. For additional items 

or SINs, the Contractor shall obtain the 

Contracting Officer’s approval before 

transmitting changes. Contract modifications 

will not be made effective until the 

Government receives the electronic file 

updates. The Contractor may transmit price 

reductions, item deletions, and corrections 

without prior approval. However, the 

Contractor shall notify the Contracting 

Officer as set forth in the Price Reductions 

clause at 552.238–75. 

(e) Amendments to Paper Federal Supply 

Schedule Price Lists. (1) The Contractor must 

provide supplements to its paper price lists, 

reflecting the most current changes. The 

Contractor may either: 

(i) Distribute a supplemental paper Federal 

Supply Schedule Price List within 15 

workdays after the effective date of each 

modification. 

(ii) Distribute quarterly cumulative 

supplements. The period covered by a 

cumulative supplement is at the discretion of 

the Contractor, but may not exceed three 

calendar months from the effective date of 

the earliest modification. For example, if the 

first modification occurs in February, the 

quarterly supplement must cover February– 

April, and every 3 month period after. The 

Contractor must distribute each quarterly 

cumulative supplement within 15 workdays 

from the last day of the calendar quarter. 

(2) At a minimum, the Contractor shall 

distribute each supplement to those ordering 

activities that previously received the basic 

document. In addition, the Contractor shall 

submit two copies of each supplement to the 

Contracting Officer and one copy to the FSS 

Schedule Information Center. 

(End of clause) 

16. Revise the newly designated 

section 552.238–68 to read as follows: 

552.238–68 Economic Price Adjustment— 

Supplies and/or Services With an 

Established Catalog Price. 

As prescribed in 538.1203(c)(44), 

insert the following clause: 

ECONOMIC PRICE ADJUSTMENT— 

SUPPLIES AND/OR SERVICES WITH 

AN ESTABLISHED CATALOG PRICE 

(DATE) 

Price adjustments include price increases 

and price decreases. Adjustments will be 

considered as follows: 

(a) Contractors shall submit price decreases 

anytime during the contract period in which 

they occur. Price decreases will be handled 

in accordance with the provisions of the 

Price Reduction Clause. 

(b) Contractors may request price increases 

providing all of the following conditions are 

met: 

(1) Increases resulting from a reissue or 

other modification of the Contractor’s 

commercial catalog/price list that was used 

as the basis for the contract award. 

(2) Increases are requested before the last 

60 days of the contract period. 

(3) At least 30 days elapse between 

requested increases. 

(c) The following material shall be 

submitted with the request for a price 

increase: 

(1) A copy of the commercial catalog/price 

list showing the price increase and the 

effective date for commercial customers. 

(2) Commercial Sales Practice format 

regarding the Contractor’s commercial 

pricing practice relating to the reissued or 

modified catalog/price list, or a certification 

that no change has occurred in the data since 

completion of the initial negotiation or a 

subsequent submission. 

(3) Documentation supporting the 

reasonableness of the price increase. 

(d) The Government reserves the right to 

exercise one of the following options: 

(1) Accept the Contractor’s price increases 

as requested when all conditions of (b), (c), 

and (d) of this clause are satisfied; 

(2) Negotiate more favorable discounts 

from the new commercial prices when the 

total increase requested is not supported; or 

(3) Remove the supply(s) from contract 

involved pursuant to the Cancellation Clause 

of this contract, when the increase requested 

is not supported. 

(e) The contract modification reflecting the 

price adjustment shall be made effective 

upon signature of the Contracting Officer, 

provided that in no event shall such price 

adjustment be effective prior to the effective 

date of the commercial price increases. The 

increased contract prices shall apply to 

delivery orders issued to the Contractor on or 

after the effective date of the contract 

modification. 

(End of clause) 

Alternate I (Date), for the AbilityOne 

Schedule ONLY, add the following paragraph 

before paragraph (a) in this clause and 

renumber the paragraphs. 

(a) AbilityOne (formerly Javits-WagnerO’Day (JWOD)) items are not covered by this 

Economic Price Adjustment Clause. The 

Committee for Purchase from People who are 

Blind or Severely Disabled is responsible for 

determining fair market prices are paid by 

the Government customers for AbilityOne 

(formerly JWOD) items, the Distributor must 

agree to charge prices that are acceptable to 

the Committee. The Committee for Purchase 

from People who are Blind or Severely 

Disabled will administer price changes on an 

annual basis. 

17. Add section 552.238–69 to read as 

follows: 

552.238–69 Economic Price Adjustment— 

Supplies and/or Services With Market 

Pricing Without an Established Catalog 

Price (I–FSS–969). 

As prescribed in 538.1203(c)(45), 

insert the following clause: 

ECONOMIC PRICE ADJUSTMENTSUPPLIES AND/OR SERVICES WITH 

MARKET PRICING WITHOUT AN 

ESTABLISHED CATALOG PRICE 

(I–FSS–969) (DATE) 

Price adjustments include price increases 

and price decreases. Adjustments will be 

considered as follows: 

(a) Contractors shall submit price decreases 

anytime during the contract period in which 

they occur. Price decreases will be handled 

in accordance with the provisions of the 

Price Reduction Clause. 

(b) There are two types of economic price 

adjustments (EPAs) possible under the 

Schedules program for contracts not based on 

commercial catalogs or price lists as 

described in this clause. Price adjustments 

may be effective on or after the first 12 

months of the contract period on the 

following basis: 

(1) Adjustments based on escalation rates 

negotiated prior to contract award. Normally, 

when escalation rates are negotiated, they 

result in a fixed price for the term of the 

contract. No separate contract modification 

will be provided when increases are based on 

negotiated escalation rates. Price increases 

will be effective on the 12-month anniversary 

date of the contract effective date, subject to 

paragraph (f) of this clause. 

(2) Adjustments based on an agreed-upon 

market indicator prior to award. The market 

indicator, as used in this clause, means the 

originally released public index, public 

survey or other public, based market 

indicator. The market indicator shall be the 

originally released index, survey or market 

indicator, not seasonally adjusted, published 

by the [to be negotiated] and made available 

at [to be identified]. Any price adjustment 

shall be based on the percentage change in 

the designated (i.e., indicator identification 

and date) market indicator from the initial 

award to the latest available as of the 

anniversary date of the contract effective 

date, subject to paragraph (e) of this clause. 

If the market indicator is discontinued or 

deemed no longer available or reliable by the 

Government, the Government and the 

Contractor will mutually agree to a 

substitute. The contract modification 

reflecting the price adjustment will be 

effective upon approval by the Contracting 

Officer, subject to paragraph (g) of this 

clause. The adjusted prices shall apply to 

orders issued to the Contractor on or after the 

effective date of the contract modification. 

(c) Notwithstanding the two economic 

price adjustments discussed in this clause, 

the Government recognizes the potential 

impact of unforeseeable major changes in 

market conditions. For those cases where 

such changes do occur, the Contracting 

Officer will review requests to make 

adjustments, subject to the Government’s 

examination of industry-wide market 

conditions and the conditions in paragraphs 

(d) and (e) of this clause. If adjustments are 

accepted, the contract will be modified 

accordingly. The determination of whether or 

not extra-ordinary circumstances exist rests 

with the Contracting Officer. The 

determination of an appropriate mechanism 

of adjustment will be subject to negotiations. 

4628 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 

(d) Conditions of Price change requests 

under paragraphs (b)(2) and (c) of this clause: 

(1) No more than three increases will be 

considered during each succeeding 12-month 

period of the contract. (For succeeding 

contract periods of less than 12 months, up 

to three increases will be considered subject 

to the other conditions of subparagraph (b)). 

(2) Increases are requested before the last 

60 days of the contract period, including 

options. 

(3) At least 30 days elapse between 

requested increases. 

(4) In any contract period during which 

price increases will be considered, the 

aggregate of the increases during any 12- 

month period shall not exceed *llll* 

percent (*llll* percent) of the contract 

unit price in effect at the end of the 

preceding 12-month period. The Government 

reserves the right to raise the ceiling when 

market conditions during the contract period 

support such a change. 

(e) The following material shall be 

submitted with request for a price increase 

under paragraphs (b)(2) and (c) of this clause: 

(1) A copy of the index, survey or pricing 

indicator showing the price increase and the 

effective date. 

(2) Commercial Sales Practice format, per 

contract clause 52.215–21 Alternate IV, 

demonstrating the relationship of the 

Contractor’s commercial pricing practice to 

the adjusted pricing proposed or a 

certification that no change has occurred in 

the data since completion of the initial 

negotiation or a subsequent submission. 

(3) Any other documentation requested by 

the Contracting Officer to support the 

reasonableness of the price increase. 

(f) The Government reserves the right to 

exercise one of the following options: 

(1) Accept the Contractor’s price increases 

as requested when all conditions of (b), (c), 

(d), and (e) of this clause are satisfied; 

(2) Negotiate more favorable prices when 

the total increase requested is not supported; 

or 

(3) Decline the price increase when the 

request is not supported. The Contractor may 

remove the item(s) from contract involved 

pursuant to the Cancellation Clause of this 

contract. 

(g) Effective Date of Increases: No price 

increase shall be effective until the 

Government receives the electronic file 

updates pursuant to GSAR 552.238–67, 

Modifications (Multiple Award Schedule) 

(Currently 552.243–72). 

(h) All MAS contracts remain subject to 

contract clauses GSAR 552.238–75, ‘‘Price 

Reductions’’; and 552.238–98, ‘‘Price 

Adjustment—Failure to Provide Accurate 

Information.’’ In the event the application of 

an economic price adjustment results in a 

price less favorable to the Government than 

the price relationship established during 

negotiation between the MAS price and the 

price to the designated customer, the 

Government will maintain the price 

relationship to the designated customer. 

(End of clause) 

552.238–70 [Amended] 

18. Amend section 552.238–70 by 

removing from the introductory 

paragraph ‘‘538.273(a)(1)’’ and adding 

‘‘538.1203(c)(46)’’ in its place. 

19. Revise section 552.238–71 to read 

as follows: 

552.238–71 Submission and Distribution 

of Authorized FSS Schedule Price Lists. 

As prescribed in 538.1203(c)(47), 

insert the following clause: 

SUBMISSION AND DISTRIBUTION OF 

AUTHORIZED FSS PRICE LISTS 

(DATE) 

(a)(1) The Contracting Officer will return 

one copy of the Authorized FSS Schedule 

Pricelist to the Contractor with the 

notification of contract award. 

(2) The Contractor may print and distribute 

the awarded price list without written 

approval from the Contracting Officer. The 

price list must include all terms and 

conditions of the cited contract. Note: It shall 

not absolve the Contractor from 

responsibility for the accuracy of the price 

list. Consequently, the Contractor would be 

required to revise the price list to correct any 

significant errors subsequently found by the 

Contracting Officer and reprint and distribute 

at the Contractor’s expense. If significant 

pricing errors are found, the Government 

may cancel the contract and the Contractor 

may be liable for any price adjustments for 

overpricing. 

(b)(1) The Contractor shall provide to the 

GSA Contracting Officer: 

(i) Two paper copies of Authorized FSS 

Schedule Pricelist; and 

(ii) The Authorized FSS Schedule Pricelist 

on a common-use electronic medium. 

Note: The Contracting Officer will provide 

detailed instructions for the electronic 

submission with the award notification. 

Some structured data entry in a prescribed 

format may be required. 

(2) The Contractor shall provide to each 

addressee on the mailing list either: 

(i) One paper copy of the Authorized FSS 

Schedule Price List; or 

(ii) A self-addressed, postage-paid 

envelope or postcard to be returned by 

addressees that want to receive a paper copy 

of the price list. The Contractor shall 

distribute price lists within 20 calendar days 

after receipt of returned requests. 

(3) The Contractor shall advise each 

addressee of the availability of price list 

information through the online Multiple 

Award Schedule electronic data base. 

(c) The Contracting Officer will provide 

detailed instructions for the electronic 

submission with the award notification. 

Some structured data entry in a prescribed 

format may be required. 

(d) During the period of the contract, the 

Contractor shall provide one copy of its 

Authorized FSS Schedule Pricelist to any 

authorized schedule user, upon request. 

(End of clause) 

552.238–72 [Amended] 

20. Amend section 552.238–72 by 

removing from the introductory 

paragraph ‘‘538.273(a)(3)’’ and adding 

‘‘538.1203(c)(48)’’ in its place. 

552.238–73 [Amended] 

21. Amend section 552.238–73 by 

removing from the introductory 

paragraph ‘‘538.273(a)(4)’’ and adding 

‘‘538.1203(c)(49)’’ in its place. 

22. Revise section 552.238–74 to read 

as follows: 

552.238–74 Industrial Funding Fee and 

Sales Reporting. 

As prescribed in 538.1203(c)(50), 

insert the following clause: 

INDUSTRIAL FUNDING FEE AND 

SALES REPORTING (DATE) 

(a) Reporting Federal Supply Schedule 

Sales. The Contractor shall report all contract 

sales under this contract as follows: 

(1) The Contractor shall accurately report 

the dollar value, in U.S. dollars and rounded 

to the nearest whole dollar, of all sales under 

this contract by calendar quarter (January 1– 

March 31, April 1–June 30, July 1–September 

30, and October 1–December 31). The dollar 

value of a sale is the price paid by the 

Schedule ordering activity for supplies and/ 

or services on a Schedule task or delivery 

order. The reported contract sales value shall 

include the Industrial Funding Fee (IFF). The 

Contractor shall maintain a consistent 

accounting method of sales reporting, based 

on the Contractor’s established commercial 

accounting practice. The acceptable points at 

which sales may be reported include— 

(i) Receipt of order; 

(ii) Shipment or delivery, as applicable; 

(iii) Issuance of an invoice; or 

(iv) Payment. 

(2) Contract sales shall be rounded to the 

nearest whole dollar and reported within 30 

calendar days following the completion of 

each reporting quarter. The Contractor shall 

electronically report the quarterly dollar 

value of sales, including ‘‘zero’’ sales, by 

utilizing the automated reporting system. 

Prior to using this automated system, the 

Contractor shall complete contract 

registration at the Vendor Support Center 

(VSC) website. The website address, as well 

as registration instructions and reporting 

procedures, will be provided at the time of 

award. The Contractor shall report sales 

separately for each Special Item Number 

(SIN) and shall continue to furnish quarterly 

reports through physical completion of the 

last outstanding task order or delivery order 

of the contract. 

(3) Reportable sales under the contract are 

those resulting from sales of contract items to 

authorized users unless the purchase was 

conducted pursuant to a separate contracting 

authority such as a Governmentwide 

Acquisition Contract (GWAC); a separately 

awarded FAR Part 12, FAR Part 13, FAR Part 

14, or FAR Part 15 procurement; or a nonFAR contract. Sales made to state and local 

governments under Cooperative Purchasing, 

Recovery Purchasing, or other similar 

authority are reportable sales. 

(4) The Contractor shall convert the total 

value of sales made in foreign currency to 

U.S. dollars using the ‘‘Treasury Reporting 

Rates of Exchange’’ issued by the U.S. 

Department of Treasury, Financial 

Management Service. The Contractor shall 

Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 4629 

use the issue of the Treasury report in effect 

on the last day of the calendar quarter. The 

report is available from Financial 

Management Service, International Funds 

Branch, Telephone: (202) 874–7994, Internet: 

http://www.fms.treas.gov/intn.html. 

(b) Remitting the Industrial Funding Fee 

(IFF). The Contractor shall remit the IFF at 

the rate set by GSA’s FSS. 

(1) The Multiple Award Schedule Program 

recoups it operating costs by charging an 

Industrial Funding Fee (IFF) to ordering 

activities. GSA receives the IFF from ordering 

activities by including the fee in prices/rates 

of awarded schedule supplies and/or 

services. The fee is collected by the 

Contractor and is passed to GSA. Offerors 

must include the IFF in their prices/rates. 

Contractors may NOT absorb the fee and the 

fee is non-negotiable. GSA will post notice of 

the current IFF rate at the Vendor Support 

Center. 

(2) The Contractor shall remit the IFF 

electronically, rounded to the nearest whole 

U.S. dollar. The IFF must be received by GSA 

within 30 calendar days after the end of the 

reporting quarter. Final payment must be 

received by GSA within 30 days after 

physical completion of the last outstanding 

task order or delivery order of the contract. 

Specific instructions for electronically 

remitting the IFF will be made available 

through the Vendor Support Center website. 

(3) The IFF represents a percentage of the 

total quarterly sales reported. This percentage 

is set at the discretion of GSA, with the 

unilateral right to change the percentage at 

any time, but not more than once per year. 

Reasonable notice prior to the effective date 

of the change will be provided. 

(4) Failure to remit the full amount of the 

IFF within 30 calendar days after the end of 

the applicable reporting period constitutes a 

contract debt to the United States 

Government under the terms of FAR Subpart 

32.6. The Government may exercise all rights 

under the Debt Collection Improvement Act 

of 1996, including withholding payments or 

interest on the debt (see FAR clause 52.232– 

17, Interest). Should the Contractor fail to 

submit the required sales reports, falsify 

them, or fail to timely pay the IFF, this is 

sufficient cause for the Government to 

terminate the contract for cause. 

(End of clause) 

552.238–75 [Amended] 

23. Amend section 552.238–75 by 

removing from the introductory 

paragraph ‘‘538.273(b)(2)’’ and adding 

‘‘538.1203(c)(51)’’ in its place. 

552.238–77 [Amended] 

24. Amend section 552.238–77 by 

removing from the introductory 

paragraph ‘‘538.7004(a)’’ and adding 

‘‘538.1203(c)(52)’’ in its place. 

552.238–78 [Amended] 

25. Amend section 552.238–78 by— 

a. Removing from the introductory 

paragraph ‘‘538.7004(b)’’ and adding 

‘‘538.1203(c)(53)’’ in its place; and 

b. Removing from Alternate I 

‘‘538.7104(b)’’ and adding 

‘‘538.1203(c)(53)’’ in its place; and 

552.238–79 [Amended] 

26. Amend section 552.238–79 by 

removing from the introductory 

paragraph ‘‘538.7004(c)’’ and adding 

‘‘538.1203(c)(54)’’ in its place; 

27. Add sections 552.238–81 through 

552.238–85 to read as follow: 

552.238–81 Placement of Orders by 

Eligible Ordering Activities. 

As prescribed in 538.1203(c)(55) 

insert the following clause: 

PLACEMENT OF ORDERS BY 

ELIGIBLE ORDERING ACTIVITIES 

(DATE) 

(a) See 552.238–78, Scope of Contract 

(Eligible Ordering Activities), for who may 

order under this contract. 

(b) Orders may be placed through 

Electronic Data Interchange (EDI) or mailed 

in paper form. EDI orders shall be placed 

using the American National Standards 

Institute (ANSI) X12 Standard for Electronic 

Data Interchange (EDI) format. 

(c) If the Contractor agrees, GSA’s Federal 

Acquisition Service (FAS) will place all 

orders by EDI using computer-to-computer 

EDI. If computer-to-computer EDI is not 

possible, FAS will use an alternative EDI 

method allowing the Contractor to receive 

orders by facsimile transmission. Subject to 

the Contractor’s agreement, other eligible 

ordering activities may place orders by EDI. 

(d) When computer-to-computer EDI 

procedures will be used to place orders, the 

Contractor shall enter into one or more 

Trading Partner Agreements (TPA) with each 

ordering activity placing orders electronically 

in order to ensure mutual understanding by 

the parties of certain electronic transaction 

conventions and to recognize the rights and 

responsibilities of the parties as they apply 

to this method of placing orders. The TPA 

must identify, among other things, the third 

party provider(s) through which electronic 

orders are placed, the transaction sets used, 

security procedures, and guidelines for 

implementation. Ordering activities may 

obtain a sample format to customize as 

needed from the office specified in paragraph 

(g) of this clause. 

(e) The Contractor shall be responsible for 

providing its own hardware and software 

necessary to transmit and receive data 

electronically. Additionally, each party to the 

TPA shall be responsible for the costs 

associated with its use of third party provider 

services. 

(f) Nothing in the TPA will invalidate any 

part of this contract between the Contractor 

and the General Services Administration. All 

terms and conditions of this contract that 

otherwise would be applicable to a mailed 

order shall apply to the electronic order. 

(g) The basic content and format of the 

TPA will be provided by: General Services 

Administration, Acquisition Operations and 

Electronic Commerce Center (FCS) 

Washington, DC 20406, Telephone: 

[Contracting Officer insert appropriate 

telephone numbers], FAX: [Contracting 

Officer insert appropriate telephone 

numbers]. 

(End of clause) 

Alternate I (Date). As prescribed in 

538.1203(c)(55), substitute the following 

paragraphs (a), (c), and (d) for paragraphs (a), 

(c), and (d) of the basic clause: 

(a) See 552.238–78, Scope of Contract 

(Eligible Ordering Activities), Alternate I for 

who may order under this contract. 

(c) If the Contractor agrees, GSA’s Federal 

Acquisition Service (FAS) will place all 

orders by EDI using computer-to-computer 

EDI. If computer-to-computer EDI is not 

possible, FAS will use an alternative EDI 

method allowing the Contractor to receive 

orders by facsimile transmission. Subject to 

the Contractor’s agreement, other eligible 

ordering activities may place orders by EDI. 

(d) When computer-to-computer EDI 

procedures will be used to place orders, the 

Contractor shall enter into one or more 

Trading Partner Agreements (TPA) with each 

ordering activity placing orders electronically 

in order to ensure mutual understanding by 

the parties of certain electronic transaction 

conventions and to recognize the rights and 

responsibilities of the parties as they apply 

to this method of placing orders. The TPA 

must identify, among other things, the third 

party provider(s) through which electronic 

orders are placed, the transaction sets used, 

security procedures, and guidelines for 

implementation. Ordering activities may 

obtain a sample format to customize as 

needed from the office specified in paragraph 

(g) of this clause. 

Alternate II (Date). As prescribed in 

538.1203(c)(55) substitute the following 

paragraphs (a), (c), and (d) for paragraphs (a), 

(c), and (d) of the basic clause: 

(a) See 552.238–78, Scope of Contract 

(Eligible Ordering Activities), Alternate II for 

who may order under this contract. 

(c) If the Contractor agrees, GSA’s Federal 

Acquisition Service (FAS) will place all 

orders by EDI using computer-to-computer 

EDI. If computer-to-computer EDI is not 

possible, FAS will use an alternative EDI 

method allowing the Contractor to receive 

orders by facsimile transmission. Subject to 

the Contractor’s agreement, other eligible 

ordering activities may place orders by EDI. 

(d) When computer-to-computer EDI 

procedures will be used to place orders, the 

Contractor shall enter into one or more 

Trading Partner Agreements (TPA) with each 

ordering activity placing orders electronically 

in order to ensure mutual understanding by 

the parties of certain electronic transaction 

conventions and to recognize the rights and 

responsibilities of the parties as they apply 

to this method of placing orders. The TPA 

must identify, among other things, the third 

party provider(s) through which electronic 

orders are placed, the transaction sets used, 

security procedures, and guidelines for 

implementation. Ordering activities may 

obtain a sample format to customize as 

needed from the office specified in paragraph 

(g) of this clause. 

(End of clause) 

4630 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 

552.238–82 Discounts for Prompt Payment 

(Federal Supply Schedule). 

As prescribed in 538.1203(c)(56), 

insert the following clause: 

DISCOUNTS FOR PROMPT PAYMENT 

(FEDERAL SUPPLY SCHEDULES) 

(DATE) 

(a) Discounts for early payment (hereinafter 

referred to as ‘‘discounts’’ or ‘‘the discount’’) 

will be considered in evaluating the 

relationship of the Offeror’s concessions to 

the Government vis-a-vis the Offeror’s 

concessions to its commercial customers, but 

only to the extent indicated in this clause. 

(b) Discounts will not be considered to 

determine the low Offeror in the situation 

described in the ‘‘Offers on Identical 

Products’’ provision of this solicitation. 

(c) Uneconomical discounts will not be 

considered as meeting the criteria for award 

established by the Government. In this 

connection, a discount will be considered 

uneconomical if the annualized rate of return 

for earning the discount is lower than the 

‘‘value of funds’’ rate established by the 

Department of the Treasury and published 

quarterly in the Federal Register. The ‘‘value 

of funds’’ rate applied will be the rate in 

effect on the date specified for the receipt of 

offers. 

(d) Discounts for early payment may be 

offered either in the original offer or on 

individual invoices submitted under the 

resulting contract. Discounts offered will be 

taken by the Government if payment is made 

within the discount period specified. 

(e) Discounts that are included in offers 

become a part of the resulting contracts and 

are binding on the Contractor for all orders 

placed under the contract. Discounts offered 

only on individual invoices will be binding 

on the Contractor only for the particular 

invoice on which the discount is offered. 

(f) In connection with any discount offered 

for prompt payment, time shall be computed 

from the date of the invoice. For the purpose 

of computing the discount earned, payment 

shall be considered to have been made on the 

date which appears on the payment check or 

the date on which an electronic funds 

transfer was made. 

(End of clause) 

552.238–83 Contractor’s Billing 

Responsibilities. 

As prescribed in 538.1203(c)(57) 

insert the following clause: 

CONTRACTOR’S BILLING 

RESPONSIBILITIES (DATE) 

(a) The Contractor is required to perform 

all billings made pursuant to this contract. 

However, if the Contractor has dealers that 

participate on the contract and the billing/ 

payment process by the Contractor for sales 

made by the dealer is a significant 

administrative burden, the following 

alternative procedures may be used. Where 

dealers are allowed by the Contractor to bill 

ordering activities and accept payment in the 

Contractor’s name, the Contractor agrees to 

obtain from all dealers participating in the 

performance of the contract a written 

agreement, which will require dealers to— 

(1) Comply with the same terms and 

conditions regarding prices as the Contractor 

for sales made under the contract; 

(2) Maintain a system of reporting sales 

under the contract to the manufacturer, 

which includes— 

(i) The date of sale; 

(ii) The ordering activity to which the sale 

was made; 

(iii) The service or supply/model sold; 

(iv) The quantity of each service or supply/ 

model sold; 

(v) The price at which it was sold, 

including discounts; and 

(vi) All other significant sales data. 

(3) Be subject to audit by the Government, 

with respect to sales made under the 

contract; and 

(4) Place orders and accept payments in the 

name of the Contractor in care of the dealer. 

(b) An agreement between a Contractor and 

its dealers pursuant to this procedure will 

not establish privity of contract between 

dealers and the Government. 

(End of clause) 

552.238–84 Payment by Credit Card. 

As prescribed in 538.1203(c)(58) 

insert the following clause: 

PAYMENT BY CREDIT CARD (DATE) 

(a) Definitions. 

Credit card means any credit card used to 

pay for purchases, including the 

Governmentwide Commercial Purchase Card. 

Governmentwide commercial purchase 

card means a uniquely numbered credit card 

issued by a Contractor under GSA’s 

Governmentwide Contract for Fleet, Travel, 

and Purchase Card Services to named 

individual Government employees or entities 

to pay for official Government purchases. 

Oral order means an order placed orally 

either in person or by telephone. 

(b) The Contractor must accept the credit 

card for payments equal to or less than the 

micro-purchase threshold (see Federal 

Acquisition Regulation 2.101) for oral or 

written orders under this contract. 

(c) The Contractor and the ordering agency 

may agree to use the credit card for dollar 

amounts over the micro-purchase threshold, 

and the Government encourages the 

Contractor to accept payment by the 

purchase card. The dollar value of a purchase 

card action must not exceed the ordering 

agency’s established limit. If the Contractor 

will not accept payment by the purchase card 

for an order exceeding the micro-purchase 

threshold, the Contractor must so advise the 

ordering agency within 24 hours of receipt of 

the order. 

(d) The Contractor shall not process a 

transaction for payment through the credit 

card clearinghouse until the purchased 

supplies have been shipped or services 

performed. Unless the cardholder requests 

correction or replacement of a defective or 

faulty item under other contract 

requirements, the Contractor must 

immediately credit a cardholder’s account for 

items returned as defective or faulty. 

(e) Payments made using the 

Governmentwide commercial purchase card 

are not eligible for any negotiated prompt 

payment discount. Payment made using an 

ordering activity debit card will receive the 

applicable prompt payment discount. 

(End of clause) 

552.238–85 Payments by Non-Federal 

Ordering Activities. 

As prescribed in 538.1203(c)(59), 

insert the following clause: 

PAYMENTS BY NON-FEDERAL 

ORDERING ACTIVITIES (DATE) 

If eligible non-federal ordering activities 

are 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 activities. If eligible 

non-federal ordering activities are not subject 

to a State prompt payment law, the terms and 

conditions of the Federal Prompt Payment 

Act as reflected in Federal Acquisition 

Regulation clause 52.232–25, Prompt 

Payment, or 52.212–4, Contract Terms and 

Conditions—Commercial Items, apply to 

such activities in the same manner as to 

Federal ordering activities. 

(End of clause) 

552.246–73 [Redesignated as 552.238–86 

and Revised] 

28. Redesignate section 552.246–73 as 

section 552.238–86 and revise it to read 

as follows: 

552.238–86 Warranty-Multiple Award 

Schedule. 

As prescribed in 538.1203(c)(60), 

insert the following clause: 

WARRANTY-MULTIPLE AWARD 

SCHEDULE (DATE) 

(a) Applicable to domestic locations. 

Unless specified otherwise in this contract, 

the Contractor’s standard commercial 

warranty as stated in the Contractor’s 

commercial price list applies to this contract. 

(b) Applicable to overseas destinations. 

Unless specified otherwise in this contract, 

the Contractor’s standard commercial 

warranty as stated in the commercial price 

list applies to this contract, except as follows: 

(1) The Contractor must provide, at a 

minimum, a warranty on all non-consumable 

parts for a period of 90 days from the date 

that the ordering activity accepts the supply. 

(2) The Contractor must supply parts and 

labor required under the warranty provisions 

free of charge. 

(3) The Contractor must bear the 

transportation costs of returning the supplies 

to and from the repair facility, or the costs 

involved with Contractor personnel traveling 

to the ordering activity facility for the 

purpose of repairing the supply onsite, 

during the 90-day warranty period. 

(End of clause) 

29. Add sections 552.238–87 through 

552.238–94 to read as follows: 

552.238–87 Warranty (I–FSS–542–A). 

As prescribed in 538.1203(c)(61), 

insert the following clause: 

Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 4631 

WARRANTY (I–FSS–542–A) (DATE) 

All necessary adjustments of equipment 

procured hereunder not occasioned by 

accident or misuse through fault or 

negligence by the Government shall be made 

by the Contractor at his own expense, 

including transportation costs, if any, during 

the 90-day period after acceptance by the 

Government. All equipment procured 

hereunder is guaranteed for a period of 1 year 

from date of acceptance. During the 

guarantee period all broken or defective parts 

not caused by accident or misuse through 

fault or negligence by the Government must 

be replaced, and all necessary equipment 

adjustment occasioned by such defective 

parts must be made, at the Contractor’s 

expense, including labor, parts, and 

transportation cost, if any. 

(End of clause) 

552.238–88 Service Points (I–FSS–626). 

As prescribed in 538.1203(c)(62), 

insert the following clause: 

SERVICE POINTS (I–FSS–626) (DATE) 

Offerors are required to include in their 

price lists the names and addresses of supply 

and service points and indicate whether they 

are stocking or service points, or both. 

(End of clause) 

552.238–89 Contract Sales Criteria 

(I–FSS–639). 

As prescribed in 538.1203(c)(63), 

insert the following clause: 

CONTRACT SALES CRITERIA (I–FSS– 

639) (DATE) 

(a) A contract will not be awarded unless 

anticipated sales are expected to exceed 

$25,000 within the first 24 months following 

contract award, and are expected to exceed 

$25,000 in sales each 12-month period 

thereafter. 

(b) The Government may cancel the 

contract in accordance with clause 552.238– 

73, Cancellation, unless reported sales are at 

the levels specified in paragraph (a) of this 

clause. 

(End of clause) 

552.238–90 Dealers and Suppliers 

(I–FSS–644). 

As prescribed in 538.1203(c)(64), 

insert the following clause: 

DEALERS AND SUPPLIERS (I–FSS– 

644) (DATE) 

When requested by the Contracting Officer, 

if other than the manufacturer, the Offeror 

must submit prior to award of a contract, 

either (1) a letter of commitment from the 

manufacturer which will assure the Offeror 

of a source of supply sufficient to satisfy the 

Government’s requirements for the contract 

period; or (2) evidence that the Offeror will 

have an uninterrupted source of supply from 

which to satisfy the Government’s 

requirements for the contract period. 

(End of clause) 

552.238–91 Blanket Purchase Agreements 

(I–FSS–646). 

As prescribed in 538.1203(c)(65), 

insert the following clause: 

BLANKET PURCHASE AGREEMENTS 

(I–FSS–646) (DATE) 

Blanket Purchase Agreements (BPAs) can 

reduce costs and save time because 

individual orders and invoices are not 

required for each procurement but can 

instead be documented on a consolidated 

basis. The Contractor agrees to enter into 

BPAs with ordering activities provided that: 

(a) The period of time covered by such 

agreements shall not exceed the period of the 

contract including option year period(s); 

(b) Orders placed under such agreements 

shall be issued in accordance with all 

applicable regulations and the terms and 

conditions of the contract; and 

(c) BPAs may be established to obtain the 

maximum discount (lowest net price) 

available in those schedule contracts 

containing volume or quantity discount 

arrangements. 

(End of clause) 

552.238–92 Dissemination of Information 

by Contractor (I–FSS–680). 

As prescribed in 538.1203(c)(66), 

insert the following clause: 

DISSEMINATION OF INFORMATION 

BY CONTRACTOR (I–FSS–680) (DATE) 

The Government will provide the 

Contractor with a single copy of the resulting 

Federal Supply Schedule. However, it is the 

responsibility of the Contractor to furnish all 

sales outlets authorized to participate in the 

performance of the contract with the terms, 

conditions, pricing schedule, and other 

appropriate information. 

(End of clause) 

552.238–93 Purchase of Open Market 

Items 

(CI–FSS–055). 

As prescribed in 538.1203(c)(67), 

insert the following clause: 

PURCHASE OF OPEN MARKET ITEMS 

(CI–FSS–055) (DATE) 

For administrative convenience, an 

ordering activity Contracting Officer may add 

items not on the Federal Supply Multiple 

Award Schedule (MAS)—referred to as open 

market items—to a Federal Supply Schedule 

blanket purchase agreement (BPA) or an 

individual task or delivery order, only if— 

(a) All applicable acquisition regulations 

pertaining to the purchase of the items not 

on the Federal Supply Schedule have been 

followed (e.g., publicizing (Part 5), 

competition requirements (Part 6), 

acquisition of commercial items (Part 12), 

contracting methods (Parts 13, 14, and 15), 

and small business programs (Part 19)); 

(b) The ordering activity Contracting 

Officer has determined the price for the items 

not on the Federal Supply Schedule is fair 

and reasonable; 

(c) The items are clearly labeled on the 

order as items not on the Federal Supply 

Schedule; and 

(d) All clauses applicable to items not on 

the Federal Supply Schedule are included in 

the order. 

Note: Open Market Items are also known 

as incidental items, noncontract items, nonSchedule items, and items not on a Federal 

Supply Schedule contract. ODCs (Other 

Direct Costs) are not part of this contract and 

should be treated as open market purchases. 

Ordering Activities procuring open market 

items must follow FAR 8.402(f). 

(End of clause) 

552.238–94 Contractor Tasks/Special 

Requirements (C–FSS–370). 

As prescribed in 538.1203(c)(68), 

insert the following clause: 

CONTRACTOR TASKS/SPECIAL 

REQUIREMENTS (C–FSS–370) (DATE) 

(a) Security Clearances: The Contractor 

may be required to obtain/possess varying 

levels of security clearances in the 

performance of orders issued under this 

contract. All costs associated with obtaining/ 

possessing such security clearances should 

be factored into the price offered under the 

Multiple Award Schedule. 

(b) Travel: The Contractor may be required 

to travel in performance of orders issued 

under this contract. Allowable travel and per 

diem charges are governed by Pub. L. 99–234 

and FAR Part 31, and are reimbursable by the 

ordering agency or can be priced as a fixed 

price item on orders placed under the 

Multiple Award Schedule. Travel in 

performance of a task order will only be 

reimbursable to the extent authorized by the 

ordering agency. The Industrial Funding Fee 

does NOT apply to travel and per diem 

charges. 

(c) Certifications, Licenses and 

Accreditations: As a commercial practice, the 

Contractor may be required to obtain/possess 

any variety of certifications, licenses and 

accreditations for specific FSC/service code 

classifications offered. All costs associated 

with obtaining/ possessing such 

certifications, licenses and accreditations 

should be factored into the price offered 

under the Multiple Award Schedule 

program. 

(d) Insurance: As a commercial practice, 

the Contractor may be required to obtain/ 

possess insurance coverage for specific FSC/ 

service code classifications offered. All costs 

associated with obtaining/possessing such 

insurance should be factored into the price 

offered under the Multiple Award Schedule 

program. 

(e) Personnel: The Contractor may be 

required to provide key personnel, resumes 

or skill category descriptions in the 

performance of orders issued under this 

contract. Ordering activities may require 

agency approval of additions or replacements 

to key personnel. 

(f) Organizational Conflicts of Interest: 

Where there may be an organizational 

conflict of interest as determined by the 

ordering agency, the Contractor’s 

4632 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Proposed Rules 

participation in such order may be restricted 

in accordance with FAR Part 9.5. 

(g) Documentation/Standards: The 

Contractor may be requested to provide 

supplies or services in accordance with rules, 

regulations, OMB orders, standards and 

documentation as specified by the agency’s 

order. 

(h) Data/Deliverable Requirements: Any 

required data/deliverables at the ordering 

level will be as specified or negotiated in the 

agency’s order. 

(i) Government-Furnished Property: As 

specified by the agency’s order, the 

Government may provide property, 

equipment, materials or resources as 

necessary. 

(j) Availability of Funds: Many Government 

agencies’ operating funds are appropriated 

for a specific fiscal year. Funds may not be 

presently available for any orders placed 

under the contract or any option year. The 

Government’s obligation on orders placed 

under this contract is contingent upon the 

availability of appropriated funds from 

which payment for ordering purposes can be 

made. No legal liability on the part of the 

Government for any payment may arise until 

funds are available to the ordering 

Contracting Officer. 

(k) Overtime: For professional services, the 

labor rates in the Schedule should not vary 

by virtue of the Contractor having worked 

overtime. For services applicable to the 

Service Contract Act (as identified in the 

Schedule), the labor rates in the Schedule 

will vary as governed by labor laws (usually 

assessed at time and a half of the labor rate). 

(End of clause) 

552.238–95 [Amended] 

30. Amend newly designated section 

552.238–95 by removing from the 

introductory paragraph ‘‘511.404(a)(2)’’ 

and adding ‘‘538.1203(c)(69)’’ in its 

place. 

552.238–96 [Amended] 

31. Amend newly designated section 

552.238–96 by— 

a. Removing from the introductory 

paragraph ‘‘512.301(a)(1)’’ and adding 

‘‘538.1203(c)(70)’’ in its place; 

b. Removing from the clause heading 

‘‘(Aug 1997)’’ and adding ‘‘(Date)’’ in its 

place; 

c. Removing from the introductory 

text of paragraph (b) ‘‘products’’ and 

‘‘product’’ and adding ‘‘supplies’’ and 

‘‘supply’’ in its place, respectively; and 

d. Removing from paragraph (c)(2) 

‘‘offeror’’ and adding ‘‘Offeror’’ in its 

place. 

552.238–97 [Amended] 

32. Amend the newly designated 

552.238–97 by removing from the 

introductory paragraph ‘‘515.209–70(c)’’ 

and adding ‘‘538.1203(c)(71)’’ in its 

place. 

552.238–98 [Amended] 

33. Amend the newly designated 

section by removing from the 

introductory paragraph ‘‘515.408(d)’’ 

and adding ‘‘538.1203(c)(72)’’ in its 

place. 

34. Add sections 552.238–99 through 

552.238–102 to read as follows: 

552.238–99 Task Order Period of 

Performance. 

As prescribed in 538.1203(c)(73), 

insert the following clause: 

TASK ORDER PERIOD OF 

PERFORMANCE (DATE) 

The term for each order placed under the 

basic contract shall be specified in the 

individual order. Under no circumstances 

may an order be placed under the basic 

contract if the basic contract has expired, or 

has been terminated or cancelled by the 

government. No orders may exceed ten (10) 

years, inclusive of options, from the date that 

the order is placed; however, no orders may 

extend more than five (5) years after the 

expiration of the basic contract. Priced order 

options, if included in the initial evaluation 

and issuance of the order, may be exercised 

after the expiration date of the basic contract. 

Notwithstanding anything to the contrary 

clause, a multi-year order placed under the 

basic contract must be consistent with FAR 

Subpart 17.1 and any applicable funding 

restrictions. 

(End of Clause) 

552.238–100 Deliveries Beyond the 

Contractual Period—Placing of Orders 

(G–FSS–910). 

As prescribed in 538.1203(c)(74), 

insert the following clause: 

DELIVERIES BEYOND THE 

CONTRACTUAL PERIOD—PLACING 

OF ORDERS (G–FSS–910) (DATE) 

In accordance with the Scope of Contract 

clause, this contract covers all requirements 

that may be ordered, as distinguished from 

delivered during the contract term. This is for 

the purpose of providing continuity of 

supply or operations by permitting ordering 

activities to place orders as requirements 

arise in the normal course of operations. 

Accordingly, any order mailed (or received, 

if forwarded by other means than through the 

mail) to the Contractor on or before the 

expiration date of the contract, and providing 

for delivery within the number of days 

specified in the contract, shall constitute a 

valid order. 

(End of Clause) 

552.238–101 Award (L–FSS–59). 

As prescribed in 538.1203(c)(75), 

insert the following provision: 

AWARD (L–FSS–59) (DATE) 

Until a formal notice of award is issued, no 

communication by the Government, whether 

written or oral, shall be interpreted as a 

promise that an award will be made. 

(End of Provision) 

552.238–102 Interpretation of Contract 

Requirements (I–FSS–965). 

As prescribed in 538.1203(c)(76), 

insert the following provision: 

INTERPRETATION OF CONTRACT 

REQUIREMENTS (I–FSS–965) (DATE) 

No interpretation of any provision of this 

contract, including applicable specifications, 

shall be binding on the Government unless 

furnished or agreed to in writing by the 

Contracting Officer or his designated 

representative. 

(End of Provision) 

[FR Doc. E9–1096 Filed 1–23–09; 8:45 am] 

BILLING CODE 6820–61–P