00-16766. Payment Information and Clarification of Provisions and Clauses Applicable to Contract Actions Under the Javits-Wagner-O'Day Act

AGENCY:

Office of Acquisition Policy, GSA.

ACTION:

Final rule.

SUMMARY:

The General Services Administration (GSA) is issuing a final rule to rewrite the General Services Administration Acquisition Regulation (GSAR), Foreign Acquisition, for consistency with the recent Federal Acquisition Regulation (FAR) rewrite. This final rule also deletes a provision for brand name or equal purchase descriptions now covered by a FAR provision, adds a clause to notify contractors of payment information available electronically, and clarifies that certain provisions and clauses for building services contracts do not apply to contract actions made under the Javits-Wagner-O'Day Act.

DATES:

Effective Date: July 24, 2000.

FOR FURTHER INFORMATION CONTACT:

Gloria Sochon, GSA Acquisition Policy Division, [phone].

SUPPLEMENTARY INFORMATION:

A. Background

The FAR published a final rewrite of FAR Part 25, Foreign Acquisition, in the Federal Register on December 27, 1999 (64 FR 72414). This rule reorganizes the GSAR for consistency with the FAR changes. It also eliminates a provision and a clause, which duplicate coverage in the FAR, regarding evaluation of offers and delivery under contracts subject to trade agreements. It does not place any new requirements on offerors or contractors.

The FAR published a final rule on use of brand name or equal purchase descriptions in the Federal Register on June 17, 1999 (64 FR 32740). This rule eliminates a GSAR provision that duplicates coverage now contained in the provision at FAR 52.211-6, Brand Name or Equal.

For invoice payments made by GSA, payment information is available on the Internet. This rule provides a clause to notify contractors that the information is available and how to access it. A GSA contractor may access this information at its discretion to track the date and amount of payments made by GSA. Access to timely payment information may help a contractor to improve its financial management.

This rule also clarifies that certain provisions and clauses prescribed at GSAR 537.110 do not apply to contracts for building services initiated under the authority of the Javits-Wagner-O'Day Act (JWOD). The provision at GSAR 552.237-70, Qualifications of Offerors, and the clause at 552.237-71, Qualifications of Employees, do not apply to JWOD contract actions. Qualifications of JWOD participating nonprofit agencies are established by the Committee for Purchase from People Who Are Blind or Severely Disabled (see FAR subpart 8.7). This clarification will help avoid potential conflict with the rules established by the Committee, which have precedence.

B. Executive Order 12866

This rule was not subject to Office of Management and Budget 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.

C. Regulatory Flexibility Act

The final rule does not constitute a significant GSAR revision within the meaning of FAR 1.501 and Public Law 98-577, and publication for public commenters is not required. However, GSA will consider comments from small entities concerning the affected GSAR parts in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S. 601, et seq., in correspondence.

D. 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.

E. Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule under 5 U.S.C. 804. This rule was submitted to Congress and GAO under 5 US.C. 801.

F. Determination To Issue a Final Rule

GSA expects this rule will have no significant cost or administrative burden on contractors or offerors. The changes improve clarity and avoid potential conflicts with FAR rules.

List of Subjects in 48 CFR Parts 501, 511, 512, 525, 532, 537 and 552

• Government procurement

Final Rule

Accordingly, GSA amends 48 CFR Parts 501, 511, 512, 525, 532, 537 and 552 as set forth below:

1. The authority citation for 48 CFR Parts 501, 511, 512, 525, 532, 537 and 552 continues to read as follows:

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

PART 511—DESCRIBING AGENCY NEEDS

2. Amend section 501.106 as follows: Delete the GSAR Reference to 511.170-3(a) and OMB Control No. 3090-0203, delete the GSAR Reference to 511.170-3(c) and OMB control No. 3090-0203, delete the GSAR Reference to 552.211-70 and OMB Control No. 3090-0203, and add a GSAR Reference to 511.140-70 and OMB Control N. 3090-0203.

3. Redesignate section 511.170 as 511.104 and revise the section title to read as follows:

511.104

Use of brand name or equal purchase descriptions.

4. Redesignate section 511.170-3 as section 511.104-70, delete paragraphs (c) and (d), and add a new paragraph (c) to read as follows:

511.104-70 

Solicitation provisions

* * * * *

(c) If you use brand name or equal purchase descriptions for some component parts of an end item, you may limit the application of the provision at FAR 52.211-6 to the specified components

PART 512—ACQUISITION OF COMMERCIAL ITEMS

5. In section 512.301, revise paragraph (a)(3) to read as follows:

512.301

Solicitation provisions and contract clauses for the acquisition of commercial items.

(a) * * *

(3) 552.212-72, Contract Terms and Conditions Required to Implement Statutes or Executive Orders Applicable to GSA Acquisitions of Commercial Items, when listed clauses apply. The clause provides for the incorporation by reference of terms and conditions required to implement provisions of law or executive orders that apply to commercial item acquisitions.

* * * * *

PART 525—FOREIGN ACQUISITION

525.105, 525.105-70, 525.109 and Subpart 525.4

[Removed]

6. Remove sections 525.105, 525.105-70, 525.109, and Subpart 525.4. Add Subparts 525.5 and 525.11 to read as follows:

Subpart 525.5—Evaluating Foreign Officers—Supply Contracts

525.570

Procurement of hand or measuring tools or stainless steel flatware for DOD.

(a) Stainless steel flatware means special order and stock items of stainless steel flatware purchased for DOD, including, but not limited to, the following National Stock Numbers (NSN):

7340-00-060-6057

7340-00-205-3340

7340-00-241-8171

7340-00-559-8357

7340-00-205-3341

7340-00-241-8169

7340-00-241-8170

7340-00-688-1055

7340-00-721-6316

7340-00-721-6971

(b) Purchases of hand or measuring tools or stainless steel flatware exceeding the simplified acquisition threshold by DOD must be domestic end products. In the case of stainless steel flatware, the Secretary of the Department concerned can make an exception. The individual must determine that a satisfactory quality and sufficient quantity produced in the United States or its possessions are not available when needed at domestic market prices.

(c) If GSA solicitations of hand or measuring tools or stainless steel flatware include DOD requirements, GSA will apply the DOD restrictions. The bases for applying the DOD restriction to GSA acquisitions are:

(1) DOD's restrictions apply to requisitions of such items from the GSA stock program.

(2) The impracticality of establishing a dual supply system to satisfy the requirements of civilian and military agencies.

(3) GSA may reject any offer when it is considered necessary for reasons of national interest.

Subpart 525.11—Solicitation Provisions and Contract Clauses

525.1101

Acquisition of supplies.

If you include DOD requirements for hand or measuring tools or stainless steel flatware in the solicitation for an acquisition estimated to exceed the simplified acquisition threshold, insert 552.225-70, Notice of Procurement Restriction—Hand or Measuring Tools or Stainless Steel Flatware, in the solicitation and resulting contract(s).

PART 532—CONTRACT FINANCING

7. Amend section 532.908 to add paragraph (c) to read as follows:

532.908

Contract clauses.

* * * * *

(c) Solicitations, purchase orders, contracts, and leases over the micropurchase theshold. Insert 552.232-78, Payment information:

(1) In all solicitations, purchase orders, and contracts, including acquisitions of leasehold interests in real property.

(2) In task and delivery orders if the contract that the order is placed against does not include the clause.

PART 537—SERVICE CONTRACTING

8. Revise section 537.110 to read as follows:

537.110

Solicitation provisions and contract clauses.

The following provision and clauses apply to contracts for building services:

(a) If the contract is expected to exceed the simplified acquisition threshold and it is not initiated under the Javits-Wagner-O'Day Act:

(1) Insert 552.237-70, Qualifications of Offerors, in the solicitation.

(2) Insert 552.237-71, Qualifications of Employees, in the solicitation and contract. If needed, use supplemental provisions or clauses to describe specific requirements for employees performing work on the contract.

(b) Insert 552.237-72, Prohibition Regaring “Quasi-Military Armed Forces,” in solicitations and contracts for guard service.

PART 552—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

552.211-70

[Removed and Reserved]

9. Remove and reserve section 552.211-70.

552.212-71

[Amended]

10. In section 552.212-71, revise the date of the clause to read “JUL 2000)” and in paragraph (b) add “_552.232-78 Payment Information” in numerical order.

11. In section 552.212-72, revise the date of the clause to read “(JUL 2000)”, in paragraph (a) delete “_552.225-8 Buy American Act—Trade Agreement's—Balance of Payments Program Certificate”, and in paragraph (b) delete “_552.225-9 Buy American Act—Trade Agreements—Balance of Payments Program.”

552.225-8 and 552.225-9

[Removed]

12. Remove sections 552.225-8 and 552.225-9

13. In section 552.225-70, revise the introductory text to read as follows:

552.225-70

Notice of Procurement Restriction—Hand or Measuring Tools or Stainless Steel Flatware.

As prescribed in 525.1101, insert the following clause:

* * * * *

14. Add section 552.232-78 to read as follows:

552.232-78

Payment Information.

As prescribed in 532.908(c), insert the following information.

PAYMENT INFORMATION (JUN 2000)

The General Services Administration (GSA) makes information on contract payments available electronically at http://www.finance.gsa.gov. The Contractor may register at the site and review its record of payments. This site provides information only on payments made by GSA, not by other agencies.

(End of clause)

15. In section 552.243-72, revise the clause date and paragraph (b)(1)(vii) to read as follows:

552.243-72

Modifications Award Schedule).

* * * * *

MODIFICATIONS (MULTIPLE AWARD SCHEDULE) (JUL 2000)

* * * * *

(b) * * *

(1) * * *

(vii) Any information requested by 52.212-3(f), Offeror Representations and Certifications—Commercial Items, that may be necessary to assure compliance with FAR 52.225-1, Buy American Act—Balance of Payments Programs—Supplies.

* * * * *

Dated: June 19, 2000.

David A. Drabkin,

Deputy Associate Administrator for Acquisition Policy.