05-6186. General Services Administration Acquisition Regulation; Deviations

AGENCIES:

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

ACTION:

Final rule.

SUMMARY:

The General Services Administration (GSA) is amending the General Services Administration Acquisition Regulation (GSAR) by issuing a final rule to modify existing policy on obtaining deviations from both the Federal Acquisition Regulation (FAR) and GSAR. This final rule will include revised procedures for obtaining deviations and will clarify the term “class deviation,” and add clarification regarding the term “contract action”.

DATES:

Effective Date: March 29, 2005.

FOR FURTHER INFORMATION CONTACT

The Regulatory Secretariat (VIR), Room 4035, GS Building, Washington, DC, 20405, [phone], for information pertaining to status or publication schedules. For clarification of content, contact Mr. Ernest Woodson, Procurement Analyst, at [phone]. Please cite Amendment 2005-01, GSAR case 2004-G508 (Change 14).

SUPPLEMENTARY INFORMATION:

A. Background

The FAR prescribes policies and procedures for authorizing deviations from the FAR when necessary to meet the specific needs and requirements of an agency unless precluded by law, executive order, or regulation. FAR 1.402 provides that the development and testing of new techniques and methods of acquisition should not be stifled simply because such actions would require a FAR deviation. However, deviations to the FAR and the GSAR have raised questions indicating the need to increase the involvement of the Office of the Chief Acquisition Officer. Therefore, this final rule modifies GSAR 501.403 and 501.404 to include revised procedures for obtaining deviations and clarify the term “class deviation,” and adds GSAR 501.404-70 to clarify the term “contract action.”

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 Regulatory Flexibility Act does not apply to this rule. This final rule does not constitute a significant FAR revision within the meaning of FAR 1.501 and Public Law 98-577, and publication for public comments is not required. However, GSA will consider comments from small entities concerning the affected GSAR Subpart 501.4 in accordance with 5 USC. 610. Interested must parties must submit such comments separately and should cite 5 U.S.C. 601, et. seq. (GSAR case 2004-G508), in correspondence.

C. 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 otherwise collect information from offerors, contractors, or members of the public that require 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: March 22, 2005.

David A. Drabkin,

Senior Procurement Executive, Office of the Chief Acquisition Officer, General Services Administration.

Therefore, GSA amends 48 CFR part 501 as set forth below:

PART 501—GENERAL SERVICES ADMINISTRATION ACQUISITION REGULATION SYSTEM

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

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

2. Amend section 501.403 by revising paragraphs (a) and (c) to read as follows:

501.403

Individual deviations.

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

(1) The Head of the Contracting Activity (HCA) must approve an individual deviation to the FAR. The authority to grant an individual deviation may not be re-delegated. A copy of the deviation must be provided to GSA's Senior Procurement Executive (SPE).

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

* * * * *

(c) Send a copy of each deviation to GSA's SPE (V).

3. Amend section 501.404 by revising paragraphs (a), (c), and (e)(2) 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. Each award under such a solicitation is considered an individual contract action.

(1) A class deviation to the FAR must be forwarded by the cognizant HCA to GSA's SPE for approval. Prior to approving a class deviation to 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 class deviation to 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 and/or GSAR revision.

* * * * *

(c) Send a copy of each deviation to GSA's SPE (V).

* * * * *

(e) * * *

(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.

4. Add sections 501.404-70 and 501.404-71 to read as follows:

501.404-70

Contract action.

Contract action. A contract action, for the purpose of determining whether an individual or class deviation is appropriate, has the same meaning as that used for reporting contract actions to Federal Procurement Data System—Next Generation (FPDS-NG). A contract action includes, but is not limited to, any of the following:

(a) Initial letter contract.

(b) Definitive contract superseding letter contract.

(c) New definitive contract.

(d) Purchase order/BPA calls using simplified acquisition procedures.

(e) Orders under single award indefinite delivery contracts.

(f) Orders under BOA.

(g) Order/modification under Federal schedule contract.

(h) Modification.

(i) Termination for Default.

(j) Termination for Convenience.

(k) Order under multiple award contract.

(l) Initial load of Federal schedule contract.

501.404-71

Deviations to the nonregulatory GSAM.

Handle individual and class deviations to the nonregulatory (unshaded) part of the GSAM as stated in 501.403 and 501.404.