E8-13593. General Services Acquisition Regulation; GSAR Case 2006-G502; Rewrite of GSAR Part 501; General Services Administration Acquisition Regulation System

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 Acquisition Regulation (GSAR) to update the text addressing the General Services Administration Acquisition Regulation System. 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 to implement streamlined and innovative acquisition procedures that contractors, offerors and GSA contracting personnel can utilize when entering into and administering contractual relationships. The GSAM incorporates the GSAR as well as internal agency acquisition policy.

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

This rule covers the rewrite of GSAR Part 501, General Services Administration Acquisition Regulation System.

DATES:

Interested parties should submit written comments to the Regulatory Secretariat on or before August 18, 2008 to be considered in the formulation of a final rule.

ADDRESSES:

Submit comments identified by GSAR Case 2006-G502 by any of the following methods:

• Regulations.gov: http://www.regulations.gov.Submit comments via the Federal eRulemaking portal by inputting “GSAR Case 2006-G502” under the heading “Comment or Submission”. Select the link “Send a Comment or Submission” that corresponds with GSAR Case 2006-G502. Follow the instructions provided to complete the “Public Comment and Submission Form”. Please include your name, company name (if any), and “GSAR Case 2006-G502” on your attached document.
• Fax: [phone].
• Mail: General Services Administration, Regulatory Secretariat (VPR), 1800 F Street, NW, Room 4035, ATTN: Laurieann Duarte, Washington, DC 20405.

Instructions: Please submit comments only and cite GSAR Case 2006-G502 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. Beverly Cromer at [phone], or by e-mail at [e-mail]. For information pertaining to the status or publication schedules, contact the Regulatory Secretariat (VPR), Room 4035, GS Building, Washington, DC 20405, [phone]. Please cite GSAR Case 2006-G502.

SUPPLEMENTARY INFORMATION:

A. Background

GSA published an Advance Notice of Proposed Rulemaking (ANPR) with request for comments in the Federal Register at 71 FR 7910, February 15, 2006, because GSA was beginning the review and update of the General Services Administration Acquisition Regulation (GSAR). No public comments were received on GSAR Part 501.

This GSAR rewrite will—

• Change “you” to “contracting officer”.
• Maintain consistency with the FAR but eliminate duplication.
• Revise GSAR sections that are out-of-date, or which imposed inappropriate burdens on the Government or contractors, especially small businesses.
• Streamline and simplify wherever possible.

In addition, GSA has recently reorganized into two, rather than three services. Therefore, the reorganization of the Federal Supply Service (FSS) and the Federal Technology Service (FTS) into the Federal Acquisition Service (FAS) was considered in the rewrite initiative.

This proposed rule contains the revisions made to Part 501, General Services Administration Acquisition Regulation System. Section 501.101 is revised to explain that the General Services Administration Acquisition Regulation (GSAR) implements or supplements the Federal Acquisition Regulation (FAR) and to change “you” to “contracting officer”. Section 501.103, Authority, is updated to add a reference to the Office of Federal Procurement Policy Act, 41 U.S.C. 421. Section 501.104 is revised to address the type of acquisitions that the GSAR applies to and to clarify the GSAR/FAR relationship. Subsection 501.105-1 is revised to state where the GSAM can be found online and to clarify the difference between the GSAR and the GSAM. Subpart 501.106, is revised to provide updated OMB approval numbers under the Paperwork Reduction Act. New Section 501.107 is added to provide procedures regarding certification requirements in accordance with Section 29 of the Office of Federal Procurement Policy Act (41 U.S.C. 425). It disallows any new requirements for a certification by a contractor or offeror in the GSAR unless certain criteria are met. Section 501.402 is deleted because it repeats information contained in the FAR and is therefore unnecessary. Sections 501.403 and 501.404 contain minor editorial changes to make language clearer. Subsection 501.404-71, Deviations to the nonregulatory GSAM, is revised to remove the language from the GSAR and place it in the GSAM because it is procedural, not regulatory.

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 no new requirements are being placed on the vendor community. No comments on this issue were received from small business concerns or other interested parties.

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. 3501, et seq.

List of Subjects in 48 CFR Part 501

• Government procurement

Dated: June 9, 2008

Al Matera,

Director,Office of Acquisition Policy.

Therefore, GSA proposes to amend 48 CFR part 501 as set forth below:

1. The authority citation for 48 CFR part 501 revised to read as follows:

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

PART 501—GENERAL SERVICES ADMINISTRATION ACQUISITION REGULATION SYSTEM

2. Revise section 501.101 to read as follows:

501.101

Purpose.

The General Services Administration Acquisition Regulation (GSAR) implements and supplements the Federal Acquisition Regulation (FAR). It contains agency acquisition policies and practices, contract clauses, solicitation provisions, and forms that control the relationship between GSA and contractors, (including prospective contractors).

3. Revise section 501.103 to read as follows:

501.103

Authority.

GSA’s Senior Procurement Executive (SPE) issues the GSAR under the general authority of the Federal Property and Administrative Services Act of 1949, as amended. Additional authority is found in the Office of Federal Procurement Policy Act, at 41 U.S.C. 421.

4. Amend section 501.104 by revising paragraphs (a) and (d) to read as follows:

501.104

Applicability.

(a) General. The GSAR applies to all acquisitions covered by the FAR. In general, this means supplies and services, including construction. In addition, the GSAR covers other actions, such as leasing in Part 570.

* * * * *

(d) GSAR/FAR Relationship. The FAR is the primary document. The GSAR only implements and supplements the FAR. The GSAR may deviate from the Federal Acquisition Regulation (FAR), if authorized.

5. Amend section 501.105-1 by revising paragraph (c) and removing paragraph (d) to read as follows:

501.105-1

Publication and code arrangement.

* * * * *

(c) GSA Acquisition Manual, which can be found at http://www.acquisition.gov/​gsam. The GSAR is found in the gray shaded areas within the General Services Administration Acquisition Manual (GSAM) text on the GSAM website.

501.105-3

[Amended]

6. Amend section 501.105-3 by removing “in CFR” and adding “in the CFR” in its place.

501.106

[Amended]

7. Amend section 501.106 by removing GSAR Reference “511.104-70” with OMB Control Number “3090-0203”; adding GSAR Reference “514.201-1” with OMB Control Number “3090-0163”, and adding GSAR Reference “515.204-1” with OMB Control Number “3090-0163”; removing GSAR Reference “523.370” with OMB Control Number “3090-0205”, removing GSAR Reference “537.110(a) ” with OMB Control Number “3090-0006”, and removing GSAR Reference “552.232-72” with OMB Control Number “3090-0205”; and adding GSAR Reference “552.238-75” with OMB Control Number “3090-0235”.

8. Add section 501.107 to read as follows:

501.107

Certifications.

(a) In accordance with Section 29 of the Office of Federal Procurement Policy Act (41 U.S.C. 425), a new requirement for a certification by a contractor or offeror may not be included in the GSAR unless—

(1) The certification requirement is specifically imposed by statute; or

(2) The SPE provides written justification to the Administrator for the certification, and the Administrator approves, in writing, the inclusion of the certification.

(b) Generally, no additional certification requirement should be contained in solicitations or clauses. However, in those rare instances where the contracting officer must request certification of certain types of information, approval from the SPE is required.

501.402

[Removed]

9. Remove section 501.402.

10. Revise section 501.403 to read as follows:

501.403

Individual deviations.

(a) An individual deviation affects only one contract action.

(1) The HCA must approve an individual deviation from the FAR. The authority to grant an individual deviation from the FAR may not be re-delegated.

(2) An individual deviation from the GSAR must be approved by the HCA. The authority to grant an individual deviation from the GSAR may be re-delegated to the Contracting Director.

(b) If GSA delegates authority to another agency and requires compliance with the GSAR as a condition of the delegation, the Contracting Director in the agency receiving the delegation may approve individual deviations from the GSAR unless the agency head receiving the delegation designates another official.

(c) A copy of the deviation must be provided to GSA’s SPE.

11. Revise section 501.404 to read as follows:

501.404

Class deviations.

(a) A class deviation affects more than one contract action. A deviation for any solicitation that will result in multiple awards, or any solicitation under the Multiple Award Federal Supply Schedule program is considered to be a class deviation, as more than one contract action is affected. Each award under such a solicitation is considered an individual contract action.

(1) A proposed class deviation from the FAR must be forwarded by the cognizant HCA to GSA’s SPE for approval. Prior to approving a class deviation from the FAR, the SPE will consult with the Chairman of the Civilian Agency Acquisition Council (CAAC) in accordance with FAR 1.404(a)(1).

(2) A proposed class deviation from the GSAR must be forwarded by the cognizant HCA to GSA’s SPE for approval.

(3) When an HCA knows that a proposed class deviation will be required on a permanent basis, the HCA should propose or recommend an appropriate FAR or GSAR revision.

(b) If GSA delegates authority to another agency and requires compliance with the GSAR as a condition of the delegation, the HCA in the agency receiving the delegation may approve class deviations from the GSAR unless the agency head receiving the delegation designates another official. A copy of the class deviation must be provided to GSA’s SPE.

(c) A request for class deviations must fully describe the need for and the nature of the deviation and be supported by appropriate documentation.

(d) Class deviations from the GSAR—

(1) Expire in 12 months, if not extended; and

(2) May be rescinded earlier by GSA’s SPE or by officials designated under paragraph (a) of this section without prejudice to any action taken previously.

501.404-71

[Removed]

12. Remove section 501.404-71.