E9-11654. General Services Administration Acquisition Regulation; GSAR Case 2008-G511; Rewrite of Part 541, Acquisition of Utility Services

AGENCY:

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

ACTION:

Proposed rule.

SUMMARY:

The General Services Administration (GSA) is proposing to amend the General Services Administration Acquisition Regulation (GSAR) to revise the section of GSAR Part 541 that provides requirements for the acquisition of utility services.

DATES:

Interested parties should submit written comments to the Regulatory Secretariat on or before July 20, 2009 to be considered in the formulation of a final rule.

ADDRESSES:

Submit comments identified by GSAR Case 2008-G511 by any of the following methods:

• Regulations.gov: http://www.regulations.gov.

Submit comments via the Federal eRulemaking portal by inputting “GSAR Case 2008-G511” under the heading “Comment or Submission”. Select the link “Send a Comment or Submission” that corresponds with GSAR Case 2008-G511. Follow the instructions provided to complete the “Public Comment and Submission Form”. Please include your name, company name (if any), and “GSAR Case 2008-G511” on your attached document.

• Fax: [phone].
• 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 2008-G511 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 Ms. Lori Sakalos at [phone]. For information pertaining to the status or publication schedules, contact the Regulatory Secretariat (VPR), Room 4041, GS Building, Washington, DC 20405, [phone]. Please cite GSAR Case 2008-G511.

SUPPLEMENTARY INFORMATION:

A. Background

The GSA is amending the GSA Acquisition Regulation (GSAR) to update the text addressing GSAR Part 541, Acquisition of Utility Services, and Subpart 541.XX, Solicitation Provision and Contract Clauses. This rule is a result of the General Services Administration Acquisition Manual (GSAM) rewrite initiative undertaken by GSA to revise the GSAM to maintain consistency with the Federal Acquisition Regulation (FAR) and implement streamlined and innovative acquisition procedures that contractors, offerors, and GSA contracting personnel can utilize when entering into and administering contractual relationships. The GSAM incorporates the GSAR as well as internal agency acquisition policy.

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

This rule covers the GSAR portion of Part 541. Subpart 541.XX is identified as “shaded” for regulatory coverage. Currently, there are no GSA-unique clauses in Part 541. However, Subpart 541.XX, Solicitation Provisions and Contract Clauses, is added to prescribe two GSA—unique clauses. These clauses are outlined in section 541.501, Solicitation Provisions and Contract Clauses, and shall be inserted by contracting officers in all utility contracts and solicitations. The first clause, GSAR 552.241-XX, Availability of Funds for the Next Fiscal Year or Quarter, is added as regulatory text for inclusion in all GSA utility solicitations and contracts instead of FAR 52.232-19. The second clause, 552.241-YY/552.233-71, Disputes (Utility Contracts), was relocated from GSAM Part 533 and added to this subpart to specifically align with utility acquisitions.

There were no public comments received in response to the Advanced Notice of Proposed Rulemaking published in the Federal Register at 71 FR 7910 on February 15, 2006.

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

B. Regulatory Flexibility Act

The General Services Administration does not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the revisions are not considered substantive. The revisions only update and reorganize existing coverage. An Initial Regulatory Flexibility Analysis has, therefore, not been performed. We invite comments from small businesses and other interested parties. The GSA will consider comments from small entities concerning the affected GSAR Parts 541 and 552 in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 601, et seq. (GSAR case 2008-G511), in correspondence.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the proposed changes to the GSAM do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. Chapter 35, et seq.

List of Subjects in 48 CFR Parts 541 and 552

• Government procurement

Dated: May 5, 2009.

Al Matera,

Director, Office of Acquisition Policy.

Therefore, GSA proposes to amend 48 CFR Chapter 5 as set forth below:

1. Add Part 541 to read as follows:

PART 541—ACQUISITION OF UTILITY SERVICES

Subpart 541.XX—Solicitation Provision and Contract Clauses

541.501

Solicitation provision and contract clauses.

2. The authority citation for 48 CFR part 541 reads as follows:

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

541.501

Solicitation provision and contract clauses.

In addition to the solicitation terms, provisions and contract clauses at FAR 41.501(c), the contracting officer shall include the following clauses—

(a) 552.241-XX, Availability of Funds for the Next Fiscal Year or Quarter. As prescribed in 541.501, insert the clause 552.241-XX, Availability of Funds for the Next Fiscal Year or Quarter, instead of FAR 52.232-19, in all utility acquisitions.

(b) 552.241-YY, Disputes (Utility Contracts). As prescribed in 541.501, insert clause 552.241-YY, Disputes (Utility Contracts), in solicitations and contracts for utility services subject to the jurisdiction and regulation of a utility rate commission.

PART 552—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

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

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

4. Add sections 552.241-XX and 552.241-YY to read as follows:

552.241-XX

Availability of Funds for the Next Fiscal Year or Quarter.

As prescribed in 541.501, insert the clause 541.241-XX, Availability of Funds for the Next Fiscal Year or Quarter, instead of FAR 52.232-19, in all utility acquisitions.

AVAILABILITY OF FUNDS FOR THE NEXT FISCAL YEAR OR QUARTER (DATE)

Funds are not presently available for performance under this contract beyond ________. The Government's obligation for performance of this contract beyond that date is contingent upon the availability of appropriated funds from which payment for contract purposes can be made. No legal liability on the part of the Government for any payment may arise for performance under this contract beyond _____, until funds are made available to the Contracting Officer for performance and until the Contractor receives notice of availability, to be confirmed in writing by the Contracting Officer.

(End of clause)

552.241-YY

Disputes (Utility Contracts).

As prescribed in 541.501, insert clause 552.241-YY, Disputes (Utility Contracts), in solicitations and contracts for utility services subject to the jurisdiction and regulation of a utility rate commission.

DISPUTES (UTILITY CONTRACTS) (DATE)

The requirements of the Disputes clause at FAR 52.233-1 are supplemented to provide that matters involving the interpretation of tariffed retail rates, tariff rate schedules, and tariffed terms provided under this contract are subject to the jurisdiction and regulation of the utility rate commission having jurisdiction.

(End of clause)