2014-09860. General Services Administration Acquisition Regulation (GSAR); Qualifications of Offerors

AGENCY:

Office of Acquisition Policy, General Services Administration.

ACTION:

Proposed rule with request for comments.

SUMMARY:

The General Services Administration (GSA) is issuing a proposed rule amending the General Services Administration Acquisition Regulation (GSAR) to remove the GSAR clause Qualifications of Offerors.

DATES:

Interested parties should submit written comments to the Regulatory Secretariat on or before June 30, 2014 to be considered in the formulation of a final rule.

ADDRESSES:

Submit comments identified by GSAR Case 2013-G501, Qualifications of Offerors, by any of the following methods:

• Regulations.gov: http://www.regulations.gov. Submit comments by searching for “GSAR Case 2013-G501”. Select the link “Comment Now” and follow the instructions provided at the “You are commenting on” screen. Please include your name, company name (if any), and “GSAR Case 2013-G501”, on your attached document.
• Fax: [phone].
• Mail: U.S. General Services Administration, Regulatory Secretariat Division (MVCB), 1800 F Street NW., 2nd Floor, ATTN: Ms. Flowers, Washington, DC 20405-0001.

Instructions: Please submit comments only and cite GSAR Case 2013-G501 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:

Ms. Kathy Rifkin, Procurement Analyst, at 816-823-2170 or email [e-mail], for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202-501-4755. Please cite GSAR Case 2013-G501.

SUPPLEMENTARY INFORMATION:

I. Background

GSA is proposing to amend the GSAR to delete GSAR Clause 552.237-70, Qualifications of Offerors, and provide other conforming changes.

This rule is a result of a retrospective analysis conducted under Executive Order (E.O.) 13563, Improving Regulations and Regulatory Review. E.O. 13563 required agencies to review existing regulations and identify rules that are obsolete, unnecessary, unjustified, excessively burdensome or counterproductive and identify those rules that warrant repeal, amendment, or revision. GSA identified GSAR clause 552.237-70, Qualifications of Offerors as one of four information collections in GSA's Final Plan for Retrospective Analysis approved by the Office of Management and Budget (OMB) on August 18, 2011. GSA's Final Plan for Retrospective Analysis was published in the Federal Register at 76 FR 32088 on June 3, 2011, (http://www.gpo.gov/​fdsys/​pkg/​FR-2011-06-03/​pdf/​2011-13495.pdf), welcoming public comments. The GSA's Final Plan was also posted on www.gsa.gov/​open. No comments were received.

II. Discussion and Analysis

GSAM clause 552.237-70 was utilized to support GSA's Public Buildings Service as outlined in GSAM 537.110. The provision requires all offerors considered for award for building services expected to exceed the simplified acquisition threshold and not initiated with Ability One under the Javis-Wagner-O-Day Act to furnish:

• Narrative statement listing comparable contracts performed.
• A general history of operating organization and complete experience.
• A statement of financial resources.
• Information on ability to maintain a staff of regular employees adequate to ensure continuous performance of the work.
• Demonstration that equipment and/or plant capacity for the work contemplates is sufficient, adequate and suitable.
• Information on competency in performing comparable building service contracts, acceptable financial resources, personnel staffing, plant, equipment and supply sources.

As a result of the Retrospective Analysis, GSA determined that the GSAR provision, 552.237-70, Qualifications of Offerors, is obsolete and no longer necessary. The collection of information associated with this provision is captured in a variety of methods such as: compliance with FAR part 9 including pre-award information, receipt of Dun and Bradstreet reports and receipt of contractor's proposal information submitted in response to the Government technical evaluation criteria.

The specific changes contained in this rule are as follows:

• Information Collection 3090-0197, Qualifications of Offerors is deleted in its entirety.
• Under Subpart 501.106—Delete GSAR reference to Information Collection 3090-0197 and GSAR provision 552.237-70.
• Under GSAR 537.110, Solicitation Provisions and Contract Clauses—Delete GSAR 537.110(a)(1).
• Under GSAR 552.2, Text of Provisions and Clauses—GSAR 552.212-71, Contract Terms and Conditions Applicable to GSA Acquisition of Commercial Items, delete paragraph (a), and designate the clause introductory text as paragraph (a) and revise.
• Under GSAR 552.2, Text of Provisions and Clauses—Delete provision 552.237-70 in its entirety.

III. Executive Orders 12866 and 13563

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

IV. Regulatory Flexibility Act

GSA does not expect this rule to have a significant economic impact on a substantial number of small business entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., as the Information Collection 3090-0197 is no longer needed and is removed from the GSAR. However, the agency did proceed with an Initial Regulatory Flexibility Analysis (IRFA) since this is issued as a proposed rule. This proposed rule reduces the burden on small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., as the Information Collection 3090-0197, citing GSAR clause 552.237-70, Qualifications of Offerors, is no longer needed and is removed from the GSAR. The IRFA has been prepared consistent with the criteria of 5 U.S.C. 604. The analysis is summarized as follows:

The removal of the solicitation clause is pursuant to authority of the Paperwork Reduction Act, Public Law 96-511, 94 Stat. 2812, codified in part at 44 U.S.C. 3501-21 and Executive Order 13563.

As a result of the Retrospective Analysis, GSA determined that the GSAR provision was no longer necessary and the provision was considered obsolete. Continued use of the provision was unnecessary as GSA currently collects this information called for under GSAR 552.237-70 by a variety of methods that include pre-award information, Dun and Bradstreet reports and contractor's proposal information submitted in response to the Government's technical evaluation criteria. Cancellation of the information collection and removal of the GSAR provision was reported to OMB by the Regulatory Secretariat with OMB approval provided on October 24, 2011.

A determination was made under the authority of the Administrator of General Services Administration (GSA) that the action is necessary. GSA issued Acquisition Letter, MV-13-01 on January 13, 2013 that removed the contents of this rule from all contracts for building services expected to exceed the simplified acquisition threshold and not initiated with Ability One under the Javis-Wagner-O'Day Act.

The Regulatory Secretariat has submitted a copy of the Initial Regulatory Flexibility Analysis (IRFA) to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat. GSA invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

GSA will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 601, et seq. (GSAR Case 2013-G501), in correspondence.

IV. Paperwork Reduction Act

The Paperwork Reduction Act (44 U.S.C. Chapter 35) does not apply. OMB approved the withdrawal and discontinuation of the Information Collection 3090-0197 identifying GSAR Provision 552.237-70 on October 24, 2011. Based on the withdrawal of the information collection, the agency reflected a public burden estimate of 6,794 hours with a base labor rate of $40.79 per hour for a total cost of $277,127 in savings. Therefore, this proposed rule does not contain any information collection requirements that require additional approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. Chapter 35).

List of Subjects in 48 CFR Parts 501, 537, and 552

• Government procurement

Dated: April 21, 2014.

Jeffrey A. Koses,

Senior Procurement Executive, Office of Acquisition Policy, General Services Administration.

Therefore, GSA proposes to amend 48 CFR parts 501, 537, and 552 as set forth below:

1. The authority citation for 48 CFR parts 501, 537, and 552 continues to read as follows:

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

PART 501—GENERAL SERVICES ADMINISTRATION ACQUISITION REGULATION SYSTEM

501.106

[Amended]

2. Amend section 501.106, in the table, by removing GSAR Reference “552.237-70” and its corresponding OMB Control Number “3090-0197”.

PART 537—SERVICE CONTRACTING

3. Amend section 537.110 by revising paragraph (a) to read as follows:

537.110

Solicitation provisions and contract clauses.

* * * * *

(a) If the contract is expected to exceed the simplified acquisition threshold and it is not initiated with Ability One under the Javits-Wagner-O'Day Act insert 552.237-71, Qualifications of Employees, in the solicitation and contract. If needed, use supplemental provisions or clauses to describe specific requirements for employees performing work on the contract.

* * * * *

PART 552—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

4. Amend section 552.212-71 by—

a. Revising the clause heading;

b. Removing paragraph (a); and

c. Designating the clause introductory text as paragraph (a) and revising it to read as follows:

552.212-71

Contract Terms and Conditions Applicable to GSA Acquisition of Commercial Items.

* * * * *

Contract Terms and Conditions Applicable to GSA Acquisition of Commercial Items (Date)

(a) The Contractor agrees to comply with any clause that is incorporated herein by reference to implement agency policy applicable to acquisition of commercial items or components. The clause in effect based on the applicable regulation cited on the date the solicitation is issued applies unless otherwise stated herein. The clauses in paragraph (b) of this section are incorporated by reference:

[The Contracting Officer should check the clauses that apply or delete the clauses that do not apply from the list. The Contracting Officer may add the date of the clause if desired for clarity.]

* * * * *

552.237-70

[Removed and Reserved]

5. Remove and reserve section 552.237-70.