2024-14416. General Services Administration Acquisition Regulation; Standardizing the Identification of Deviations in the General Services Administration Acquisition Regulation

AGENCY:

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

ACTION:

Final rule.

SUMMARY:

GSA is issuing this final rule amending the General Services Administration Acquisition Regulation (GSAR) to standardize the language used to identify and communicate when there has been an approved FAR deviation within the GSAR. This action is necessary in order to provide consistency for readers of the GSA regulations. The intended effects of this rule are: first, the standardized text will allow readers consulting the table of contents of a given GSAR subpart to easily locate sections containing FAR deviations; and second, standardized language at the beginning of individual GSAR subdivisions containing FAR deviations will both identify the use of and specify the actions authorized by the deviation.

DATES:

Effective August 2, 2024.

FOR FURTHER INFORMATION CONTACT:

For clarification of content, contact Mr. Daniel Frias or Mr. Bryon Boyer, GSA Acquisition Policy Division, at [e-mail] or 817-850-5580. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202-501-4755 or [e-mail]. Please cite GSAR Case 2022-G506.

SUPPLEMENTARY INFORMATION:

I. Background

This final rule amends the General Services Administration Acquisition Regulation (GSAR) to standardize the language used to identify and communicate FAR deviations within the GSAR. FAR deviations are currently identified using inconsistent language, and the location of deviations is not readily apparent to readers. In light of this issue, GSA is publishing this amendment with the aim of enhancing the visibility of FAR deviations within the GSAR by ensuring their visibility in the table of contents for each relevant subpart, as well as within specific subdivisions. Additionally, GSA seeks to standardize language used to introduce the impact of individual FAR deviations within the text.

II. Discussion and Analysis

The naming convention for GSAR sections containing FAR deviations will be revised to incorporate the label “(FAR DEVIATION)” at the end of the section title. This change aims to enhance the visibility of the deviation when referencing the table of contents of the respective subpart.

Within sections containing FAR deviations, the deviating subdivision will begin “GSA has a deviation from FAR (section number) that allows . . .” This standardized language ensures easy identification and understanding of the implications of the deviation.

III. Publication of This Final Rule for Public Comment Is Not Required

The statute that applies to the publication of the GSAR is the Office of Federal Procurement Policy statute (codified at title 41 of the United States Code). Specifically, 41 U.S.C. 1707(a)(1) requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This rule is not required to be published for public comment, because it is merely conforming the references to FAR deviations throughout the text of the GSAR and does not have a significant effect or impose any new requirements on contractors or offerors.

III. Executive Order 12866, 13563, and 14094

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 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. E.O. 14094 (Modernizing Regulatory Review) supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in E.O. 12866 and E.O. 13563. OIRA has determined this rule not to be a significant regulatory action and, therefore, is not subject to review under section 6(b) of E.O. 12866 (Regulatory Planning and Review).

IV. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a “major rule” may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The General Services Administration will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule cannot take effect until 60 days after it is published in the Federal Register . OIRA has determined this rule is not a “major rule” under 5 U.S.C. 804(2).

V. Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) does not apply to this rule, because an opportunity for public comment is not required to be given for this rule under 41 U.S.C. 1707(a)(1). Accordingly, no regulatory flexibility analysis is required and none has been prepared.

VI. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the changes to the GSAR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget (OMB) under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 512, 527, 532, 536, 541, and 552

• Government procurement

Jeffrey A. Koses,

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

Therefore, GSA amends 48 CFR parts 512, 527, 532, 536, 541, and 552 as set forth below:

PART 512—ACQUISITION OF COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES

1. The authority citation for 48 CFR part 512 continues to read as follows:

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

2. Amend section 512.216 by revising the section heading to read as follows:

512.216

Unenforceability of unauthorized obligations (FAR DEVIATION).

* * * * *

512.301

[Amended]

3. Amend section 512.301 by—

a. Removing “commercial Services” wherever it appears and adding “commercial services (FAR DEVIATION)” in its place; and

b. Removing from paragraph (b) “FAR deviation that” and adding “deviation from FAR 52.212-4 that” in its place.

PART 527—PATENTS, DATA, AND COPYRIGHTS

4. The authority citation for part 527 continues to read as follows:

Authority: 40 U.S.C. 486(c).

5. Amend section 527.409 by revising the section heading and the introductory text to read as follows:

527.409

Contract clauses (FAR DEVIATION).

GSA has a deviation from FAR 52.227-17 that allows use of the clauses in paragraphs (a) and (b) of this section in lieu of the FAR clause at 52.227-17.

* * * * *

PART 532—CONTRACT FINANCING

6. The authority citation for part 532 continues to read as follows:

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

532.111

[Amended]

7. Amend section 532.111 by—

a. Removing from the section heading “non-commercial purchases” and adding “non-commercial purchases (FAR DEVIATION)” in its place; and

b. Removing from the first sentence of paragraph (a) “a FAR deviation” and adding “a deviation from FAR 52.232-1” in its place.

8. Amend section 532.706-3 by revising the section heading and introductory text to read as follows:

532.706-3

Contract clauses for unenforceability of unauthorized obligations (FAR DEVIATION).

GSA has a deviation from FAR 52.232-39 that allows use of the clause in paragraph (a) of this section in lieu of the FAR clause at 52.232-39.

* * * * *

532.908

[Amended]

9. Amend section 532.908 by revising the section heading and paragraph (b)(1) introductory text to read as follows:

532.908

Contract clauses (FAR DEVIATION).

* * * * *

(b) * * *

(1) FAR deviation. GSA has a deviation from FAR 52.232-25 to authorize payment within 10 days of receipt of a proper invoice. The deviation applies only to:

* * * * *

PART 536—CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

10. The authority citation for part 536 continues to read as follows:

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

11. Amend section 536.7107 by—

a. Revising the section heading; and

b. Removing from paragraph (a) “a FAR deviation that” and adding “a deviation from FAR 52.216-17 that” in its place.

The revision reads as follows:

536.7107

Contract clauses (FAR DEVIATION).

* * * * *

PART 541—ACQUISITION OF UTILITY SERVICES

12. The authority citation for part 541 continues to read as follows:

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

13. Amend section 541.501 by—

a. Removing from the section heading “Contract clauses” and adding “Contract clauses (FAR DEVIATION)” in its place; and

b. Removing from paragraph (a) “a FAR deviation” and adding “a deviation from FAR 52.232-19” in its place.

541.501

Contract clauses (FAR DEVIATION).

* * * * *

PART 552—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

14. The authority citation for part 552 continues to read as follows:

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

15. Amend section 552.103 by revising paragraph (b) to read as follows:

552.103

Identification of provisions and clauses.

* * * * *

(b) Deviations. (1) Federal Acquisition Regulation deviations. When a GSAR provision or clause is used with an authorized deviation in lieu of a FAR provision or clause in a solicitation or contract, it shall be identified by—

(i) The addition of “(FAR DEVIATION)” after the date of the GSAR provision or clause.

(ii) The addition of standardized language at the beginning of the prescription that reads “ FAR deviation. GSA has a deviation from FAR (provision or clause number) . . .”.

(2) General Services Administration Acquisition Regulation deviations. When a GSAR provision or clause is used with an authorized deviation in a solicitation or contract, it shall be identified by—

(i) The addition of “(GSAR DEVIATION)” after the date of the GSAR provision or clause.

(ii) The addition of standardized language at the beginning of the prescription that reads “ GSAR deviation. GSA has a deviation from GSAR (provision or clause number) . . .”.

* * * * *

16. Amend section 552.107-70 by revising the introductory text to read as follows:

552.107-70

Solicitation provision and contract clause.

GSA has a deviation from FAR 52.252-5 that allows use of the following provisions and clauses in lieu of the FAR provision at 52.252-5 and the FAR clause at 52.252-6.

* * * * *

552.212-4

[Amended]

17. Amend section 552.212-4 by—

a. Removing from the section heading “(FAR DEVIATION 52.212-4)” and adding “(FAR DEVIATION)” in its place; and

b. Removing from the clause heading “(FAR DEVIATION) (JAN, 2022)” and adding “(DEVIATION FAR 52.212-4) (JAN 2023)” in its place.