E8-23703. General Services Acquisition Regulation; GSAR Case 2007-G507; Describing Agency Needs

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 revise language regarding the requirements for describing the agency needs.

DATES:

Interested parties should submit written comments to the Regulatory Secretariat on or before December 8, 2008 to be considered in the formulation of a final rule.

ADDRESSES:

Submit comments identified by GSAR Case 2007-G507 by any of the following methods:

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

Submit comments via the Federal eRulemaking portal by inputting “GSAR Case 2007-G507” under the heading “Comment or Submission”. Select the link “Send a Comment or Submission” that corresponds with GSAR Case 2007-G507. Follow the instructions provided to complete the “Public Comment and Submission Form”. Please include your name, company name (if any), and “GSAR Case 2007-G507” on your attached document.

• Fax: [phone].
• Mail: General Services Administration, Regulatory Secretariat (VPR), 1800 F Street, NW, Room 4041, ATTN: Laurieann Duarte, Washington, DC 20405.

Instructions: Please submit comments only and cite GSAR Case 2007-G507 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. Cecelia Davis at [phone], or by e-mail at [e-mail]. 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 2007-G507.

SUPPLEMENTARY INFORMATION:

A. Background

The General Services Administration (GSA) is amending the General Services Administration Acquisition Regulation (GSAR) to update the text addressing GSAR Part 511, Describing Agency Needs, Subpart 511.1, Selecting and Developing Requirements Documents, Subpart 511.2, Using and Maintaining Requirements Documents, Subpart 511.4, Delivery or Performance Schedules, Subpart 511.5, Liquidated Damages, and Subpart 511.6, Priorities and Allocations.

This rule is a result of the General Services Administration Acquisition Manual (GSAM) Rewrite initiative. The initiative was undertaken by GSA to revise the GSAM to maintain consistency with the 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 General Services Administration Acquisition Regulation (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 511. The rule revises GSAR Subpart 511.1, Selecting and Developing Requirements Documents; to renumber 511.104-70, Solicitation provisions, to 511.107 and revise its content for grammatical and structural clarity and consistency with FAR 52.211-6, GSAR Subpart 511.2, Using and Maintaining Requirements Documents; to revise 511.204, Solicitation provisions and contract clauses; to delete paragraphs (a), (b)(2), and (b)(4) and insert new paragraphs (a),(b)(4) through (b)(13), and change paragraph (d) to paragraph (c) accordingly, and update the section and insert prescriptions for the use of new GSAR clauses in solicitations and contracts that cite Federal specifications, or in supply contracts that exceed the simplified acquisition threshold to include a format at paragraph (b)(11), Subpart 511.4, Delivery or Performance Schedules, to revise 511.404, Contract clauses; to delete paragraphs (a)(1), (2), and (5) and renumber paragraphs (3), (4), and (6) as paragraphs (1), (2) and (3) respectively, and revise paragraph (b) to change the title of the GSAR clause referenced in the paragraph to “Phased Completion of Work,” and revise the prescription for the use of the clause for consistency with FAR 52.211-10, to add a new Subpart 511.5, Liquidated Damages, and 511.503, Contract Clause; to require liquidated damages for phased completion of construction for consistency with FAR 52.211-12, Subpart 511.6, Priorities and Allocations, to revise 511.600, Scope of Part; to delete obsolete text and update the section to note its non-applicability to non-rated orders; to delete 511.601, Definitions, in its entirety because the definitions are adequately addressed in FAR 11.601; revise 511.602, General, to update paragraphs (d) and (e); to remove obsolete text and add new language to make the paragraphs consistent with GSA’s current operating structure; to maintain section 511.603, Procedures, as written without change; and to delete 511.604, Solicitation provision and contract clause in its entirety as the clause is obsolete and is no longer required.

Discussion of Comments

One public comment was received in response to the “Advanced Notice of Proposed Rulemaking” at 71 FR 7910, February 15, 2006, pertaining to this GSAR Part 511. The commenter suggested that GSA consider whether the various delivery and packaging requirements identified in the “Risk of Loss” clause to be simplified to clearly require delivery and packaging that comports with the contractor’s standard commercial practices. The agency determined that this comment is outside the scope of this Part, and has referred it for consideration under GSAM Part 538.

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. GSA will consider comments from small entities concerning the affected GSAR Parts 511 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 2007-G507), 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. 3501, et seq.

List of Subjects in 48 CFR Parts 511 and 552

• Government procurement

Dated: September 26, 2008

Al Matera,

Director, Office of Acquisition Policy.

Therefore, GSA proposes to amend 48 CFR parts 511 and 552 as set forth below:

1. The authority citation for 48 CFR parts 511 and 552 continues to read as follows:

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

PART 511—DESCRIBING AGENCY NEEDS

511.104-70

[Removed]

2. Remove section 511.104-70.

3. Add section 511.107 to read as follows:

511.107

Solicitation provisions.

In addition to FAR clause 52.211-6, the contracting officer shall insert the provision at 552.211-X2 in solicitations when permitting brand name or equal item description(s), with instructions for the offeror to complete the information.

4. Amend section 511.204 by—

a. Removing paragraph (a), and redesignating paragraphs (b), (c), and (d) as (a), (b), and (c) respectively;

b. Removing the newly redesignated paragraphs (b)(2) and (b)(4), and redesignating the newly redesignated paragraph (b)(3) as (b)(2) and adding new paragraphs (b)(3) through (b)(13); and

c. Removing from the second sentence of the newly redesignated paragraph (b)(2) “You” and adding “The Contracting Officer” in its place.

The added text reads as follows:

511.204

Solicitation provisions and contract clauses.

(b)* * *

(3) Insert a clause substantially the same as the clause at 552.211-76, Charges for Packaging, Packing and Marking, in solicitations and contracts for supplies to be delivered to GSA distribution centers.

(4) Include the clause at 552.211-X8, Non-Manufactured Wood Packaging Material for Export, in solicitations and contracts for supplies when deliveries may be made to both civilian and military activities overseas and the contract amount is expected to exceed the simplified acquisition threshold.

(5) Include the clause 552.211-X4, Consistent Pack and Package Requirements, in solicitations and contracts for supplies when deliveries may be made to both civilian and military activities and the contract amount is expected to exceed the simplified acquisition threshold.

(6) Include the clause 552.211-X5, Maximum Weight Per Shipping Container, in solicitations and contracts for supplies when deliveries may be made to both civilian and military activities and the contract amount is expected to exceed the simplified acquisition threshold.

(7) Include the clause 552.211-X6, Export Packing, in solicitations and contracts for supplies when deliveries may be made to both civilian and military activities and the contract amount is expected to exceed the simplified acquisition threshold.

(8) Include the clause 552.211-X7, Vehicle Export Preparation, in solicitations and contracts for supplies when deliveries may be made to both civilian and military activities and the contract amount is expected to exceed the simplified acquisition threshold.

(9) Include the clause 552.211-X9, Small Parts, in solicitations and contracts for supplies when deliveries may be made to both civilian and military activities and the contract amount is expected to exceed the simplified acquisition threshold.

(10) Include the clause 552.211-X10, Decals, Stickers, and Data Plates, in solicitations and contracts for supplies when deliveries may be made to both civilian and military activities and the contract amount is expected to exceed the simplified acquisition threshold.

(11) Include the clause 552.211-X11, Purchased Vehicle Format, in solicitations and contracts for supplies when deliveries may be made to both civilian and military activities and the contract amount is expected to exceed the simplified acquisition threshold.

(12) Include the clause 552.211-X12, Radio Frequency Identification (RFID) Using Passive Tags, in solicitations and contracts for supplies when deliveries may be made to military activities and the contract amount is expected to exceed the simplified acquisition threshold.

(13) Include the clause 552.211-X13, Unique Item Identification (UID), in solicitations and contracts for supplies when deliveries may be made to military activities and a single item exceeds $5,000 in cost.

5. Revise section 511.404 to read as follows:

511.404

Contract clauses.

(a) Supply contracts.—(1) Shelf-life items. Use the following clauses in solicitations and contracts that require delivery of shelf-life items within a specified number of months from the date of manufacture or production:

(i) Insert 552.211-79, Acceptable Age of Supplies, if the required shelf-life period is 12 months or less, and lengthy acceptance testing may be involved. For items having a limited shelf-life, substitute Alternate I when required by the director of the portfolio concerned.

(ii) Insert 552.211-80, Age on Delivery, if the required shelf-life period is more than 12 months, or when source inspection can be performed within a short time period.

(2) Stock replenishment contracts. Insert 552.211-81, Time of Shipment, in solicitations and stock replenishment contracts that do not include the Availability for Inspection, Testing and Shipment/Delivery clause at 552.211-83 and require shipment within 45 calendar days after receipt of the order. If shipment is required in more than 45 days, use Alternate I.

(3) Indeterminate testing time. Insert 552.211-83, Availability for Inspection, Testing and Shipment/Delivery, in solicitations and contracts that provide for source inspection by Government personnel and that require lengthy testing for which time frames cannot be determined in advance. If the contract is for stock items, use Alternate I.

(b) Construction contracts. Insert the clause at 552.211-84, Phased Completion of Work, in solicitations and contracts for construction when different completion dates are anticipated and FAR 52.211-10 is applicable.

6. Add Subpart 511.5 to read as follows:

Subpart 511.5—Liquidated Damages

511.503

Contract clauses.

Insert the clause at 552.211-X3, Liquidated Damages for Phased Completion—Construction, in solicitations and contracts for construction when supplementing FAR 52.211-12, Liquidated Damages—Construction.

7. Revise section 511.600 to read as follows:

511.600

Scope of subpart.

Pursuant to the Defense Priorities and Allocations System (DPAS) Delegation 3, the Department of Commerce delegated to the GSA Global Supply (Southwest Supply Center) the authority to use the DPAS system. This subpart implements the DPAS within GSA. This subpart does not apply to non-rated orders placed by GSA on behalf of other agencies, for emergency preparedness, response, and recovery support.

511.601

[Removed and reserved]

8. Remove and reserve section 511.601.

9. Amend section 511.602 by revising paragraphs (d) and (e) to read as follows:

511.602

General.

(d) Only the GSA Global Supply (Southwest Supply Center) may place an order containing a DPAS priority rating.

(e) The Commissioner, FAS, shall issue additional guidance, as may be necessary, to ensure effective implementation of its delegated DPAS authority.

511.604

[Removed and reserved]

10. Remove and reserve section 511.604.

PART 552—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

552.211-8

[Removed and reserved]

11. Remove and reserve section 552.211-8.

12. Add sections 552.211-X1, 552.211-X2, and 552.211-X3, after section 552.211-8 to read as follows:

552.211-X1

Time of Delivery.

As prescribed at 511.404(a), insert the following clause:

TIME OF DELIVERY (DATE)

	The Contractor will ship contract item(s) to the Federal Supply Acquisition Service (FAS) stocking points identified in the delivery order at its discretion in order to maintain the required stock levels within the minimum and maximum requirements provided in the weekly status report.
	Delivery is required to be made at destination within *______* calendar days after receipt of order for deliveries to a GSA facility.
	Orders under this contract may require direct delivery to other agencies. Orders for direct delivery must be shipped and delivered within the time specified in blocks below.
	Shipment must be made with *______* days after receipt of order.
	In addition to block above the Contractor must also ensure that delivery will be made within *______* days after receipt of order.

Note: A “X” mark in the left hand block shall be considered a mandatory requirement to be fulfilled by the contractor.

552.211-X2

Brand Name or Equal.

As prescribed at 511.107, insert the following provision:

BRAND NAME OR EQUAL (DATE)

The offeror shall include the following information for any brand name or equal item it is offering as required by Federal Acquisition Regulation 52.211-6:

Manufacturer’s Name _____

Brand _____

Model or Part No. _____

552.211-X3

Liquidated Damages for Phased Completion—Construction

As prescribed in 511.503, insert the following clause:

LIQUIDATED DAMAGES FOR PHASED COMPLETION—CONSTRUCTION (DATE)

(a) Where the contract specifies different completion dates for different phases or portions of the work, the Contractor shall be liable for liquidated damages at the specified rate for each calendar day following the completion date that the phase or portion of work is not completed. If a single rate is specified, the specified rate shall be apportioned between the different phases or portions of the work.

(b) If the Government elects to accept any portion of the work not specifically designated as a phase or portion of work with its own completion date, the liquidated damage rate shall be apportioned between accepted work and uncompleted work, and the Contractor’s liability for liquidated damages shall be computed accordingly. The Contractor may receive a rated order under this contract from a Delegate Agency. The Contractor must give preferential treatment to rated orders as required by the Defense Priorities and Allocations System (DPAS) regulation (15 CFR part 700). The existence of previously accepted unrated or lower rated orders is not sufficient reason to reject a rated order. Rated orders take preference over all unrated orders as necessary to meet required delivery dates. There are two levels of ratings designated by the symbol of either “DO” or “DX.” All “DO” rated orders have equal priority with each other and take preference over unrated orders. All “DX” rated orders have equal priority with each other and take preference over “DO” rated orders and unrated orders. The rating designation is followed by a program identification symbol. Program identification symbols indicate which approved program is supported by the rated order (see Schedule 1 of 15 CFR part 700 for a list of Delegate Agencies, approved programs, and program identification symbols).

552.211-15

[Removed and reserved]

13. Remove and reserve section 552.211-15.

552.211-71

[Removed and reserved]

14. Remove and reserve section 552.211-71.

552.211-74

[Removed and reserved]

15. Remove and reserve section 552.211-74.

16. Revise section 552.211-76 to read as follows:

552.211-76

Charges for Packaging, Packing and Marking.

As prescribed in 511.204(c)(4), insert a clause substantially as follows:

CHARGES FOR PACKAGING, PACKING AND MARKING (DATE)

If supplies shipped to a GSA wholesale distribution center are not packaged, packed and marked in accordance with contract requirements, the Government has the right, without prior notice to the Contractor, to perform the required repackaging/repacking/ remarking, by contract or otherwise, and charge the Contractor therefore at the rate of $__ *__ per man-hour or fraction thereof. The Contractor will also be charged for material costs, if incurred. This right is not exclusive, and is in addition to other rights or remedies provided for in this contract.

(End of clause)

* The rate to be inserted in the above clause shall be determined by the Commissioner, Federal Supply Service, or a designee.

552.211-78

[Removed and reserved]

17. Remove and reserve section 552.211-78.

552.211-82

[Removed and reserved]

18. Remove and reserve section 552.211-82.

19. Amend section 552.211-84 by revising the section heading; and revising the date of the clause to read as follows:

552.211-84

Phased Completion of Work.

PHASED COMPLETION OF WORK (DATE)

20. Add sections 552.211-X4 through 552.211-X13 to read as follows:

552.211-X4

(D-FSS-457) Consistent Pack and Package Requirements.

As prescribed in 511.204, insert the following clause:

CONSISTENT PACK AND PACKAGE REQUIREMENTS (DATE)

The Contractor is advised that the Government will, where possible, order in full shipping containers and/or unitized loads. If volume warrants, the Government may also order in truckload or carload quantities provided such quantities do not exceed the maximum order limitation of this contract.

When the number of items per unit container, intermediate container and/or shipping container is not specified for an item, the offeror will state, in the spaces provided in the schedule of items, the number of items to be provided in each container. The quantities which are accepted at the time of award shall remain in effect throughout the term of the contract unless the Contracting Officer approves in writing a request by the Contractor to change the package quantities. Requests for changes shall be directed to the Contracting Officer or Administrative Contracting Officer, whichever is applicable.

552.211-X5

(D-FSS-462) Maximum Weight Per Shipping Container.

As prescribed in 511.204, insert the following clause:

MAXIMUM WEIGHT PER SHIPPING CONTAINER (DATE)

In no instance shall the weight of a shipping container and its contents exceed 23 kilograms (51 pounds), except when caused by—

(1) The weight of a single item within the shipping container;

(2) A prescribed quantity per pack for an item per shipping container; or

(3) A definite weight limitation set forth in the purchase description.

(End of clause)

552.211-X6

(D-FSS-465) Export Packing.

As prescribed in 511.204, insert the following clause:

EXPORT PACKING (DATE)

(a) Offerors are requested to quote, in the pricelist accompanying their offer (or by separate attachment), additional charges or net prices covering delivery of the items furnished with commercial or military export packing. Military export packing, if offered, shall be in accordance with Mil-Std-2073-1 Level A or B as specified. If commercial export packing is offered, the offer or pricelist shall include detailed specifications describing the packing to be furnished at the price quoted.

(b) Ordering activities will not be obligated to utilize the Contractor's services for export packing accepted under this solicitation, and they may obtain such services elsewhere if desired. However, the Contractor shall furnish items export packed when such packing is specified on the purchase order.

(End of clause)

552.211-X7

(D-FSS-466) Export Preparation.

As prescribed in 511.204, insert the following clause:

EXPORT PREPARATION (DATE)

Vehicles shall be prepared for export on wheels, unboxed, unless otherwise specified in the Schedule of Items. All parts and equipment easily removable (subject to pilferage) shall be enclosed in a box substantially secured to the vehicle (inside body if feasible) in such a manner as to minimize the possibility of loss or damage while in transit to ultimate destination.

(End of clause)

552.211-X8

(D-FAS-468) Non-Manufactured Wood Packaging Material for Export.

As prescribed in 511.204, insert the following clause:

NON-MANUFACTURED WOOD PACKAGING MATERIAL FOR EXPORT (DATE)

(a) Definitions.

Packaged material, and solid wood packing material (SWPM), for purposes of this clause, is defined as each separate and distinct material that by itself or in combination with other materials forms the container providing a means of protecting and handling a product. This includes, but is not limited to, pallets, dunnage, crating, packing blocks, drums, load boards, pallet collars, and skids.

Non-manufactured wood, is also called solid wood and defined as wood packing other than that comprised wholly of wood-based products such as plywood, particle board, oriented strand board, veneer, wood wool, and similar materials, which has been created using glue, heat and pressure or a combination thereof.

IPPC Country: Countries of the European Union (EU) or any other country endorsing the International Plant Protection Convention (IPPC) “Guidelines for Regulating Wood Packaging Material in International Trade,” approved March 15, 2002. A listing of countries participating in the IPPC is found at http://www.aphis.usda.gov/​import_​export/​plants/​plant_​exports/​wpm/​country/​index.shtml.

(b) Non-manufactured wood pallets and other non-manufactured wood packaging material used to pack items for delivery to or through IPPC countries must be marked and properly treated in accordance with IPPC guidelines.

(c) This requirement applies whether the shipment is direct to the end user or through a Government designated consolidation point. Packaging that does not conform to IPPC guidelines will be refused entry, destroyed or treated prior to entry.

(d) For Department of Defense distribution facilities or freight consolidation points, all non-manufactured wood pallets or packaging material with a probability of entering countries endorsing the IPPC Guidelines must be treated and marked in accordance with DLAD 47.305-1 (available at http://www.dla.mil/​j-3/​j-3311/​DLAD/​rev5.htm), and MIL-STD-2073-1, Standard Practice for Military Packaging (and any future revision).

(e) Pallets and packing material shipped to FAS distribution facilities designated for possible delivery to the countries endorsing the IPPC Guidelines will comply with DLAD 47.305-1, and MIL-STD-2073-1.

(f) Delays in delivery caused by non-complying pallets or wood package material will not be considered as beyond the control of the Contractor. Any applicable Government expense incurred as a result of the Contractor’s failure to provide appropriate pallets or package material shall be reimbursed by the Contractor. Expenses may include the applicable cost for repackaging, handling and return shipping, or the destruction of solid wood packaging material.

(End of clause)

552.211-X9

(D-FSS-469) Small Parts.

As prescribed in 511.204, insert the following clause:

SMALL PARTS (DATE)

All small parts required must be furnished in connection with machines covered by contracts resulting from this solicitation shall be packed in envelopes, sealed, identified with part numbers and quantity on outside of envelopes: larger parts must be individually tagged and identified with part number on face of tag.

(End of clause)

552.211-X10

(D-FSS-478) Decals, Stickers, and Data Plates.

As prescribed in 511.204, insert the following clause:

DECALS, STICKERS, AND DATA PLATES (DATE)

Unless otherwise specified, caution plates/decals shall be conspicuously installed for all equipment requiring such notices. Vehicles for civil agencies shall be provided with the manufacturer’s current warranty legend imprinted on decalcomania, and applied in a visible area of the engine compartment. In addition, a decal or sticker shall provide at least the following information: contract number; purchase order number; date of delivery, month and year; and the warranty time, in month and miles.

552.211-X11

(D-FSS-479) Purchase Vehicle.

As prescribed in 511.204, insert the following clause:

PURCHASE VEHICLE (DATE)

The Contractor shall affix one copy of GSA Form 1398, GSA Purchased Vehicle, fully completed, to the right or left front door lock face or door post after final inspection is made. All marks on windows and other labels (except labels cautioning against drained transmission, crankcase, and rear axle) shall be removed. Copies of GSA Form 1398 are available from the Contracting Officer.

NOTE TO OFFEROR: Data shown in the solicitation schedule of items may be utilized to satisfy the requirements for the following to be shown on GSA Form 1398:

(1) Receiving Agency—Examples are: State, USIA, Forest Service, GSA.

(2) Purchase Order Number—Use the five-digit “case” or “file” number.

(End of clause)

552.211-X12

Radio Frequency Identification (RFID) Using Passive Tags.

As prescribed in 511.204, insert the following clause:

RADIO FREQUENCY IDENTIFICATION (RFID) USING PASSIVE TAGS (DATE)

Radio Frequency Identification shall be required on all non-bulk shipments to the Defense Logistics Agency (DLA) or Department of Defense (DoD) destinations. Shipments shall be tagged in accordance with 48 CFR clause 252.211-006. Shipments to GSA Distribution Centers with final destinations to DLA and DoD shall be in compliance to 48 CFR 252.211-7006. Copies may be obtained from http://www.access.gpo.gov/​nara/​cfr/​cfr-table-search.html.

(End of clause)

552.211-X13

Unique Item Identification (UID).

As prescribed in 511.204, insert the following clause:

UNIQUE ITEM IDENTIFICATION (UID) (DATE)

Unique Item Identification shall be required on tangible personal property in accordance with DFARS 211.274-4 as requested by the Defense Logistics Agency (DLA) or Department of Defense (DOD). Item Property that falls within this criterion shall be valuated and identified in accordance with DFARS 252.211-7003. Details shall be found in DFARS 252.211-7007. Copies can be obtained from http://www.access.gpo.gov (48 CFR Chapter 2).

(End of clause)