General Services Administration Acquisition Regulation

Federal RegisterJul 9, 1999

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SUMMARY: The General Services Administration (GSA) is revising the

General Services Administration Acquisition Regulation (GSAR) in its

entirety. GSA has rewritten the GSAR into plain English, included only

regulatory material, and removed internal agency guidance. GSA has also

updated the GSAR to reflect recent changes to the Federal Acquisition

Regulation (FAR). GSA intends the reissued GSAR to be simpler to

understand and less burdensome for contractors and offerors, GSA

contracting personnel, and contracting personnel in other agencies

delegated contracting authority subject to following GSAR procedures.

DATES: Effective Date: September 1, 1999. Comments should be submitted

in writing to the address shown below on or before September 7, 1999.

ADDRESSES: Mail comments to General Services Administration, Office of

Acquisition Policy, GSA Acquisition Policy Division (MVP), 1800 F

Street, NW, Room 4012, Washington, DC 20405.

FOR FURTHER INFORMATION CONTACT: Gloria Sochon, GSA Acquisition Policy

Division, (202) 208-6726.

SUPPLEMENTARY INFORMATION:

A. Background

On January 28, 1992, the President directed agencies to evaluate

their regulatory programs and eliminate certain rules that restrict the

economy. On September 11, 1993, the President directed agencies to

eliminate at least half of their internal management regulations. While

these directives did not apply to GSA acquisition regulations, GSA

initiated a review and rewrite of the GSAR following the same

principles. The GSAR, as reissued--

--Uses plain English to improve clarity and understanding.

--Reduces the amount of regulatory material.

--Eliminates internal operating procedures that do not have a

significant effect beyond GSA, or a significant cost or administrative

impact on contractors or offerors.

--Eliminates guidance which merely implements or supplements the

Federal Acquisition Regulation (FAR) without a significant cost or

administrative impact on contractors or offerors, or an effect beyond

GSA's internal operating procedures.

--In subparts 503, 515, 552, and 570, incorporates changes from the

interim rule published in the Federal Register at 63 FR 18843, April

16, 1998 (ADP 2800.12A, CHGE 79). GSA received no comments on this

interim rule. The interim rule updated regulation procedures for

acquisitions of leasehold interests in real property for consistency

with FAR Part 15 where applicable. The interim rule is incorporated

with editorial changes for plain language, more clear organization, and

consistency in cross references.

--In subparts 504.5 and 505.1, provides guidance on use of GSA's

Electronic Posting System for issuing synopses and solicitations.

--In subparts 511, 516, 542, and 552 incorporates changes from the

interim rule published in the Federal Register at 64 FR 4788, February

1, 1999 (ADP 2800.12A, CHGE 81). The interim rule clarified

requirements for making deliveries under contracts that provide for

delivery to both civilian and military locations, clarified the

contracting activities authorized to place orders under Federal Supply

Service (FSS) contracts, allowed Procuring Contracting Officers (PCOs)

in FSS to authorize Administrative Contracting Officers (ACOs) to issue

cure or show causes notices, revised the time for submission of close-

out reports under FSS multiple award contracts (MAS), and simplified

the process for deleting items from FSS MAS contracts. Only the

Department of Veterans Affairs (VA) submitted comments. VA requested

that the authority to delete items without prior approval be optional

for VA because of potential conflicts with its Prime Vendor system. VA

also requested that publication requirements for supplemental price

lists be clarified to reflect workdays and be based on calendar months.

GSA adopts these comments. VA also requested that section 552.216-73

identify a GSA contact for information on authorized schedule users.

This comment is not adopted. Questions regarding authorized users

should be referred to the contracting officer.

--In subparts 515.3, 537.2, and 552.237-73, provides guidance on use of

outside evaluators. GSA published a proposed rule on disclosure and use

of proprietary information in the Federal Register at 58 FR 42715,

August 11, 1993. GSA received 18 comments from 5 respondents and

considered all comments in preparing this interim rule. Two principal

areas of concern from industry concerned adding a requirement for

nongovernment evaluators to execute nondisclosure agreements directly

with the owners of proposal information and clarification of available

remedies for violations. GSA will not require nondisclosure agreements

between outside evaluators and the owner of proposal information. Such

a requirement would be impractical to administer and does not add to

the protection afforded the owner of the information. The owner of

proposal information has remedies under the Trade Secrets Act. The

Government has contractual and legal remedies, including those defined

at FAR 3.104, FAR 52.203-8 and 52.203-10, GSAR 552.237-73, and the

termination provisions of the contract.

--In sections 532.71 and 552.232-1, allows automatic payment for

recurring services (i.e., fixed roll payment).

--In sections 536.271 and 552.236-83, establishes procedures for using

project labor agreements for large and significant Federal construction

projects.

--Incorporates updates to remain consistent with the FAR through

Federal Acquisition Circular (FAC) 97-10, including:

--Revises section 503.1 to eliminate references to certifications and

parallel the organization of FAR section 3.1.

--In section 511.404(a)(1), updates the FAR reference from FAR 52.211-1

to FAR 52.211-8.

--Reorganizes Part 513 to correspond to FAR Part 13.

--Eliminates certifications that are not based on statute, including

section 514.303 (eliminating the requirement that the receipt for

withdrawal of a bid certify the representative's authority), section

528.301 (deleting the reference to certification of insurance and

deferring to applicable FAR clauses), and sections 537.110 and 552.237-

72 (changing the certification regarding quasi-military armed forces to

a prohibition).

--Reorganizes and updates Part 515 to correspond to FAR part 15.

--Makes conforming changes to rules on cost and pricing data and

information other than cost or pricing data in Part 515.

[[Page 37201]]

--Updates subpart 519.8 and section 552.219-74, to conform to changes

in FAC 97-05 and 97-06, and to add direct section 8(a) award authority

based on a Memorandum of Understanding with the Small Business

Administration.

--Updates subparts headings in Part 528 to correspond to subpart

headings in the FAR.

--Implements agency protest procedures in sections 533.103 and 552.233-

70.

--Reorganizes Part 542 to correspond to FAR Part 42.

--Updates prescription citations in Part 552 to conform to the revised

Parts 501-550 and 570.

--Deletes the following sections from Part 552, which are either

obsolete or duplicate FAR provisions or clauses:

552.203-4 Contingent Fee Representation and Agreement

552.214-16 Minimum Bid Acceptance Period

552.214-74 Solicitation Copies

552.225-70 Buy American Act--Hand or Measuring Tools or Stainless

Steel

Flatware

552.225-72 Eligible Products from Nondesignated Countries--Waiver

552.225-75 Buy American Act Notice--Construction Materials

552.228-70 Bid Guarantee and Bonds

552.228-71 Bid Guarantee

552.228-72 Performance Bond

552.228-73 Performance and Payment Bonds

552.233-70 Disputes (Utility Contract)

552.236-83 Furnishing Information and Records

552.270-40 Asbestos and Hazardous Waste Management.

--Renumbers section 552.211-1 to 552.211-8 for consistent cross-

numbering to the corresponding clause of FAR 52.211-8.

--Incorporates a clause at sections 552.212-71 and 552.238-78,

Cancellation, required by the Federal Supply Service for multiple award

schedule contracts.

--At section 552.212-71, Contract Terms and Conditions Applicable to

GSA Acquisition of Commercial Items, separates provisions from clauses

and updates references to revised provisions and clauses.

--At section 552.212-72, Contract Terms and Conditions Required to

Implement Statutes or Executive Orders Applicable to GSA Acquisition of

Commercial Items, separates provisions from clauses; adds 552.225-8,

Buy American Act--Trade Agreements--Balance of Payments Program

Certificate and 552.225-9, Buy American Act--Trade Agreements--Balance

of Payments Program; and updates references to revised provisions and

clauses.

--At section 552.216-70, Economic Adjustment--FSS Multiple Award

Schedule Contracts, corrected the title of the clause for internal

consistency.

--At section 552.225-8, Buy American Act--Trade Agreements--Balance of

Payments Program Certificate, conforms the name to the related FAR

provisions.

--At section 552.225-9, Buy American Act--Trade Agreements--Balance of

Payments Program, conforms the name to the related FAR clause.

--At section 552.225-70, Buy American Act-Hand of Measuring Tools or

Stainless Steel Flatware, updates GSAR references.

--At section 552.228-70, Workers' Compensation Laws, changes

``workermen's'' to ``workers'' ' to conform to FAR references.

--At section 552.232-23, Assignment of Claims, deletes references to

``delivery'' orders so that the clause covers both delivery and task

orders.

--At section 552.232-70, Invoice Requirements, deletes references to

``purchase'' and ``delivery'' orders so that the clause covers

purchase, delivery, and task orders.

--At section 552.232-76, Electronic Funds Transfer Payment, updates the

clause to conform the information required under leases for real

property to FAR requirements for other contracts.

--At section 552.232-77, Payment by Credit Card, updates procedures for

consistency with the new Government credit card contract and removes

``delivery'' so that the clause covers both delivery and task orders.

--At section 552.236.77, Specifications and Drawings, corrects the

reference to the FAR clause at 52.236-21, Specifications and Drawings

for Construction.

--At section 552.236-78, Shop Drawings, Coordination Drawings, and

Schedules, corrects the reference to the FAR clause at 52.236-21,

Specifications and Drawings for Construction.

--At section 552.238-74, Contractor's Report of Sales, updates

references to the clause at 552.238-76, Industrial Funding Fee and adds

task orders in paragraph (a).

--At section 552.238-76, Industrial Funding Fee, updates references to

the clause at 552.238-75, Contractor's Report to Sales.

--At section 552.243-71, Equitable Adjustments, revises a reference

from ``workmen's'' to workers'' ' to conform to references in the FAR.

--At section 552.243-72, Modifications (Multiple Award Schedule),

updates references to GSAR clauses.

--At section 552.246-70, Source Inspection by Quality Approved

Manufacturer, corrects the numbering of subparagraphs in paragraph (b).

--At section 552.247-71, Diversion of Shipment Under F.O.B. Destination

Contracts. The clause authorizes GSA to unilaterally direct shipment of

an order to an alternate location. Prior to changes resulting from the

Federal Acquisition Streamlining Act, FAR 52.243-1, Changes--Fixed

Price, and 52.247-54, Diversion of Shipment Under F.O.B. Destination

Contracts, provided the Government the right to unilaterally change the

place of delivery and defined the basis for making related price

adjustments GSA's Federal Supply Service (FSS) used these clauses to

implement efficient inventory management in the Stock, SOP, and Single

Award Schedule programs. The authority to divert shipment to certain

volume orders allows FSS to maintain optimum inventory levels and

minimize space, storage, handling, and related expenses. It also allows

FSS to respond quickly to customer agency needs. FAR 52.212-4(c) allows

changes ``only by written agreement of the parties.'' This requires FSS

to process a bilateral modification for each order when directing

shipment to an alternate location would be in the Government's best

interest. This creates unacceptable delays in processing orders and

responding to customer agencies' needs. It also cause FSS to maintain

excessive stock levels and storage facilities in order to respond to

unusual orders. This unnecessarily increases FSS costs, and in turn,

costs to customer agencies. The ability to unilaterally direct

shipments improves responsiveness and reduces costs in the Government's

best interest.

--At section 552.225-5, Authorized Deviations in Provisions, conforms

the provision to changes in FAR 52.252-5.

--At section 552.252-6, Authorized Deviations in Clauses, conforms the

clause to changes in FAR 52.252-6.

--Revises the following clauses applicable to leases of real property

to provide a common standard to measuring usable square feet based on

the Building Owners and Managers Association definition:

552.270-2 Historic Preference.

552.270-4 Definitions

552.270-14 Changes

552.270-16 Adjustment for Vacant Premises

[[Page 37202]]

552.270-18 Default in Delivery--Time Extensions

552.270-20 Payment

552.270-29 Acceptance of Space

--Redesignates provisions and clauses so that they appear in the

sequence referred to in parts 501-551 and 570.

------------------------------------------------------------------------

Old section New section

------------------------------------------------------------------------

552.203-73............................... 552.203-70

552.203-70............................... 552.203-71

552.209-73............................... 552.209-70

552.209-74............................... 552.209-71

552.209-75............................... 552.209-72

552.209-76............................... 552.209-73

552.214-73............................... 552.214-70

552.214-75............................... 552.214-71

552.214-76............................... 552.214-72

552.216-71............................... 552.216-70

552.216-72............................... 552.216-71

552.216-73............................... 552.216-72

552.216-74............................... 552.216-73

552.219-71............................... 552.219-70

552.219-72............................... 552.219-71

552.219-73............................... 552.219-72

552.219-74............................... 552.219-73

552.223-71............................... 552.223-72

552.223-72............................... 552.223-71

552.225-71............................... 552.225-70

552.228-75............................... 552.228-70

552.229-72............................... 552.229-71

552.232-70............................... 552.232-74

552.232-71............................... 552.232-75

552.232-72............................... 552.232-70

552.232-73............................... 552.232-76

552.232-77............................... 552.232-73

552.232-78............................... 552.232-71

552.232-79............................... 552.232-72

552.232-80............................... 552.232-77

552.238-72............................... 552.238-74

552.238-74............................... 552.238-71

552.238-75............................... 552.238-72

552.238-76............................... 552.238-75

552.238-77............................... 552.238-76

552.246-71............................... 552.246-72

552.246-72............................... 552.246-71

552.270-4................................ 552.270-2

552.270-6................................ 552.270-3

552.270-10............................... 552.270-4

552.270-11............................... 552.270-5

552.270-12............................... 552.270-6

552.270-13............................... 552.270-7

552.270-15............................... 552.270-8

552.270-16............................... 552.270-9

552.270-17............................... 552.270-10

552.270-18............................... 552.270-11

552.270-19............................... 552.270-12

552.270-20............................... 552.270-13

552.270-21............................... 552.270-14

552.270-22............................... 552.270-15

552.270-25............................... 552.270-16

552.270-27............................... 552.270-17

552.270-28............................... 552.270-18

552.270-30............................... 552.270-19

552.270-31............................... 552.270-20

552.270-32............................... 552.270-21

552.270-33............................... 552.270-22

552.270-34............................... 552.270-23

552.270-35............................... 552.270-24

552.270-36............................... 552.270-25

552.270-37............................... 552.270-26

552.270-38............................... 552.270-27

552.270-39............................... 552.270-28

552.270-41............................... 552.270-29

------------------------------------------------------------------------

B. Executive Order 12866

This rule was submitted to the Office of Management and Budget

(OMB) under Executive Order 12866. This is not a major rule under 5

U.S.C. 804.

C. Regulatory Flexibility Act

This interim rule will not 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. The guidance on

disclosure and use of proprietary information implements agency

procedures for releasing proposals outside the Government for

evaluation and provide a contract clause to ensure that evaluation

contractors protect proposal information appropriately. The agency

protest procedures offer vendors an alternate forum which is quicker

and less expensive than protests to the General Accounting Office or

the Courts. The other revisions do not add any new requirements; but

reduce the number of agency regulations, restate existing requirements

in plain English, and provide consistency with the FAR. These revisions

streamline GSA acquisition rules, provide greater flexibility, and

promote understanding.

D. Paperwork Flexibility Act

The reissued GSAR contains information collection requirements

subject to the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) which

were approved previously by OMB and assigned the control numbers shown

in section 501.106.

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 U.S.C. 804.

F. Determination to Issue an Interim Rule

Urgent and compelling reasons exist to promulgate this interim rule

without prior opportunity for public comment. Many of the updates to

consistency with the FAR are necessary to comply with statute or

Executive Orders. For example, this rule implements Section 29 of the

Office of Federal Procurement Policy Act (41 U.S.C. 425), eliminating

certifications not required by statute or approved by the Office of

Federal Procurement Policy, and Executive Order 12979, Agency

Procurement Protests, providing inexpensive, informal, simple, and

quick resolution of protests. Other changes necessary for consistency

with the FAR implement streamlined and innovative acquisitions

procedures that benefit contractors, offerors, and GSA contracting

personnel, such as GSA implementation of new FAR Part 15 source

selection procedures. Further, the rule provides significant benefits

to the Federal government, offerors, and contractors by:

--Reducing the number of agency regulations, which reduces

administrative burden and promotes flexibility in the acquisition

process.

--Restates requirements in plain English, which promotes understanding.

--Provides consistency with the FAR, which eliminates conflicts and

reduces confusion.

However, pursuant to Pub. L. 98-577 and FAR 1.501, GSA will

consider public comments received in response to this interim rule in

the formation of the final rule.

List of Subjects in 48 CFR Chapter 5

Government procurement.

Dated: June 16, 1999.

Ida M. Ustad,

Deputy Associate Administrator for Acquisition Policy.

Accordingly, the General Services Administration revises 48 CFR

Chapter 5, to read as follows:

CHAPTER 5--GENERAL SERVICES ADMINISTRATION

SUBCHAPTER A--GENERAL

Part

501 General Services Administration Acquisition Regulations System

502 Definitions of Words and Terms

503 Improper Business Practices and Personal Conflicts of Interest

504 Administrative Matters

SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING

505 Publicizing Contract Actions

509 Contractor Qualifications

511 Describing Agency Needs

512 Acquisition of Commercial Items

SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES

513 Simplified Acquisition Procedures

514 Sealed Bidding

515 Contracting by Negotiation

516 Types of Contracts

517 Special Contracting Methods

SUBCHAPTER D--SOCIOECONOMIC PROGRAMS

519 Small Business Programs

522 Application of Labor Laws to Government Acquisitions

523 Environment, Conservation, Occupational Safety and Drug-Free

Workplace

525 Foreign Acquisition

[[Page 37203]]

SUBCHAPTER E--GENERAL CONTRACTING REQUIREMENTS

527 Patents, Data, and Copyrights

528 Bonds and Insurance

529 Taxes

532 Contract Planning

533 Protests, Disputes, and Appeals

SUBCHAPTER F--SPECIAL CATEGORIES OF CONTRACTING

536 Construction and Architect-Engineer Contracts

537 Service Contracting

538 Federal Supply Schedule Contracting

SUBCHAPTER G--CONTRACT MANAGEMENT

542 Contract Administration and Audi Services

543 Contract Modifications

546 Quality Assurance

547 Transportation

549 Termination of Contracts

SUBCHAPTER H--CLAUSES AND FORMS

552 Solicitation Provisions and Contract Clauses

553 Forms

SUBCHAPTER I--SPECIAL CONTRACTING PROGRAMS

570 Acquiring Leasehold Interests in Real Property

SUBCHAPTER A--GENERAL

PART 501--GENERAL SERVICES ADMINISTRATION ACQUISITION REGULATION

SYSTEM

Subpart 501.1--Purpose, Authority, Issuance

Sec.

501.101 Purpose

501.103 Authority

501.104 Applicability

501.105 Issuance

501.105-1 Publication and code arrangement

501.105-2 Arrangement of regulations

501.105-3 Copies

501.106 OMB Approval under the Paperwork Reduction Act

Subpart 501.4--Deviations From the FAR and GSAR

501.402 Policy

501.403 Individual deviations

501.404 Class deviations

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

Subpart 501.1--Purpose, Authority, Issuance

501.101 Purpose.

(a) The General Services Acquisition Regulation (GSAR) contains

agency acquisition policies and practices, contract clauses,

solicitation provisions, and forms that control the relationship

between GSA and contractors and prospective contractors.

(b) GSAR address rules directly to you, the contracting officer,

unless otherwise indicated.

501.103 Authority.

GSA's Senior Procurement Executive issues the GSAR under the

authority of the Federal Property and Administrative Services Act of

1949, as amended.

501.104 Applicability.

(a) General. The GSAR applies to contracts for suppliers or

services, including construction.

(b) Acquisition of leasehold interests in real property. Part 570

establishes rules for the acquisition of leasehold interests in real

property. Other provisions of 48 CFR chapter 5 (GSAR) do not apply to

leases of real property unless specifically cross-reference in part

570.

laws and other authorities affecting procurement. A GSAR rule

specifically directed by statute has the force and effect of law.

(d) GSAR/FAR Relationship. The GSAR may deviate from the Federal

Acquisition Regulation (FAR) if authorized. If the GSAR does not

implement the FAR, the FAR alone governs.

501.105 Issuance.

501.105-1 Publication and code arrangement.

The GSAR is published in the following sources:

(a) Daily issue of the Federal Register.

(b) Annual Code of Federal Regulations (CFR), as Chapter 5 of Title

48.

(d) GSA Home Page at http://www/gas.gov. Click on either

``Government Agencies'' or on ``Business and Industry,'' the click on

``Acquisition.''

501.105-2 Arrangement of regulations.

(a) The GSAR numbers and captions policies and procedures to

correspond to how they appear in the FAR, e.g., 1.104 in the FAR is

501.104 in the GSAR.

(b) GSAR rules not implementing the FAR have numbers beginning with

70, e.g., part 570, subsection 515.209-70.

rule may not require GSAR implementation.

501.105-3 Copies.

The GSAR in CFR form may be purchased from: Superintendent of

Documents, Government Printing Office, Washington, DC 20402.

501.106 OMB approval under the Paperwork Reduction Act.

------------------------------------------------------------------------

OMB Control

GSAR Reference No.

------------------------------------------------------------------------

509.105-1(a)............................................ 3090-0007

511.170-3(a)............................................ 3090-0203

511.170-3(c)............................................ 3090-0203

511.204(d).............................................. 3090-0246

511.404(a)(1)........................................... 3090-0204

511.404(a)(2)........................................... 3090-0204

511.404(a)(5)........................................... 3090-0204

514.201-7(a)............................................ 3090-0200

516.203-4(a)(1)......................................... 3090-0243

516.506................................................. 3090-0248

519.708(b).............................................. 3090-0252

522.406-6............................................... 1215-0149

523.370................................................. 3090-0205

532.111(c).............................................. 3090-0080

532.905-70.............................................. 9000-0102

532.905-71.............................................. 3090-0080

537.110(a).............................................. 3090-0197

537.110(b).............................................. 3090-0006

538.273(a)(1)........................................... 3090-0250

538.273(a)(3)........................................... 3090-0262

538.273(b)(1)........................................... 3090-0121

542.1107................................................ 3090-0027

546.307-70.............................................. 3090-0027

546.302-71.............................................. 3090-0027

549.502(b).............................................. 3090-0027

552.211-8............................................... 3090-0204

552.211-70.............................................. 3090-0203

552.211-77.............................................. 3090-0246

552.211-78.............................................. 3090-0204

552.211-82.............................................. 3090-0204

552.214-71.............................................. 3090-0200

552.216-70.............................................. 3090-0243

552.216-72.............................................. 3090-0248

552.216-73.............................................. 3090-0248

552.219-72.............................................. 3090-0252

552.223-72.............................................. 3090-0205

552.232-72.............................................. 3090-0080

552.237-70.............................................. 3090-0197

552.237-71.............................................. 3090-0006

552.238-70.............................................. 3090-0250

552.238-72.............................................. 3090-0262

552.238-74.............................................. 3090-0121

552.242-70.............................................. 3090-0027

552.246-70.............................................. 3090-0027

552.246-71.............................................. 3090-0027

552.249-71.............................................. 3090-0227

GSA-72-A................................................ 3090-0121

GSA-527................................................. 3090-0007

GSA-618-D............................................... 1215-0149

GSA-1142................................................ 3090-0080

GSA-1364................................................ 3090-0086

GSA-1678................................................ 3090-0027

GSA-2419................................................ 9000-0102

570.702(c).............................................. 3090-0086

------------------------------------------------------------------------

Subpart 501.4--Deviations From the FAR and GSAR

501.402 Policy.

Uniformity is a goal of GSA's Acquisition Regulation System.

Despite this desire for uniformity, a contracting activity may take any

of the following actions:

(a) Develop and test new procedures and techniques.

(b) Adopt alternate procedures in the public interest for unique

programmatic or managerial requirements

[[Page 37204]]

requirement provided the deviation does not violate the underlying

statute. Deviations must not be used to defeat the FAR and GSAR

approval requirements.

501.403 Individual deviations.

(a) The Contracting Director approves individual deviations from

the FAR and GSAR.

(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.

Executive (MV).

501.404 Class deviations.

(a) HCAs approve class deviations from the FAR and GSAR.

(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.

Executive (MV).

(d) A request for class deviations must be supported by statements

that fully describe the need for and the nature of the deviation.

(e) Class deviations from the GSAR:

(1) Expire in 12 months if not extended.

(2) May be rescinded earlier by GSA's Senior Procurement Executive

or by officials designated under paragraph (a) of this section without

prejudice to any action taken previously.

PART 502--DEFINITIONS OF WORDS AND TERMS

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

Subpart 502.1--Definitions

502.101 Definitions.

Agency competition advocate means the GSA Competition Advocate in

the Office of Acquisition Policy.

Assigned counsel means the attorney employed by the Office of

General Counsel (including offices of Regional Counsel) assigned to

provide legal review or assistance.

Contracting activity competition advocate means the individual

designated in writing by the head of the contracting activity (HCA).

This authority may not be redelegated. The HCA must ensure that the

designated competition advocate is not assigned any duty or

responsibility that is inconsistent with the advocacy function. The

identity of the designated official shall be communicated to procuring

staff and the Senior Procurement Executive.

Contracting director means:

(a) Except in FSS, a director of a Central Office or Regional

office Division responsible for performing contracting or contract

administration functions.

(b) In FSS, a director of a Commodity Center or FSS Bureau.

Contracting officer's representative (COR), contracting officer's

technical representative (COTR), or contract administrator means a

Government employee designated in writing by the contracting officer to

perform specific limited activities for the contracting officer, such

as contract administration.

Debarring official or suspending official means the Senior

Procurement Executive or a designee.

Head of the contracting activity means the Deputy Associate

Administrator for Acquisition Policy (MV); Commissioners of the Federal

Technology Service (FTS); Federal Supply Service (FSS), or Public

Buildings Service (PBS); or Regional Administrators. The Deputy

Associate Administrator for Acquisition Policy serves as the HCA for

Central Office contracting activities outside of FTS, FSS, and PBS.

Senior procurement executive means the Deputy Associate

Administrator for Acquisition Policy.

Senior program official means a person reporting to, and designated

by, the HCA to have overall program responsibility for determining how

the agency will meet its need. The official should have a position of

authority over the participating offices. Examples include Assistant

Regional Administrators or Deputy Commissioners.

PART 503--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF

INTEREST

Subpart 503.1--Safeguards

Sec.

503.104 Procurement integrity

503.104-3 Definitions

503.104-9 Contract clauses

Subpart 503.2--Contractor Gratuities to Government Personnel

503.204 Treatment of violations

Subpart 503.4--Contingent Fees

503.404 Contract clause

Subpart 503.5--Other Improper Business Practices

503.570 Advertising

503.570-1 Policy

503.570-2 Contract clause

Subpart 503.7--Voiding and Rescinding Contracts

503.702 Definition

503.705 Procedures

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

Subpart 503.1--Safeguards

503.104 Procurement integrity.

503.104-3 Definitions.

Federal agency procurement as used in FAR 3.104 and in this

section, also means acquisitions of leasehold interests in real

property.

503.104-9 Contract clauses.

Acquisitions of Leasehold Interests in Real Property

Insert a clause substantially the same as the clause at 552.203-70,

Price Adjustment for Illegal or Improper Activity, in solicitations and

contracts for and modifications to leasehold interests in real property

exceeding $100,000.

Subpart 503.2--Contractor Gratuities to Government Personnel

503.204 Treatment of violations.

(a) The Senior Procurement Executive, or designee, makes

determinations under FAR 3.204.

The Senior Procurement Executive, or designee, takes all the

following actions:

(1) Coordinates with legal counsel.

(2) Initiates proceedings under FAR 3.204(a) by notifying the

contractor that GSA is considering action against the contractor for a

violation of the Gratuities clause. Notice is sent by a certified

letter to the last known address of the party, its counsel, or agent

for service of process. In the case of a business, notice is sent to

any partner, principal officer, director, owner or co-owner, or joint

venture.

(3) Presumes receipt if no return receipt is received within 10

calendar days after mailing the notice.

(b) The contractor has 30 calendar days to exercise its rights

under FAR 3.204(b), unless the Senior Procurement Executive, or

designee, grants an extension.

determination, the Senior Procurement Executive, or designee, may refer

the matter to an agency fact-finding official designated by the

[[Page 37205]]

Chairman of the GSA Board of Contract Appeals. Referrals for fact-

finding are not made in cases arising from a conviction or indictment

as defined in FAR 9.403. If a referral is made, the fact-finding

official takes all the following actions:

(1) Gives the contractor an opportunity to dispute material facts

relating to the determinations under FAR 3.204(a)(1) and (2).

(2) Conducts proceedings under rules consistent with FAR 3.204(b).

(3) Schedules a hearing within 20 calendar days of receipt of the

referral. The contractor or GSA may request an extension for good

cause.

(4) Delivers to the Senior Procurement Executive, or designee,

written findings of fact (together with a transcription of the

proceedings, if made) within 20 calendar days after the hearing record

closes. The findings must resolve any material disputes of fact by a

preponderance of the evidence.

(d) The Senior Procurement Executive, or designee, may reject the

findings of the fact-finding official only if the findings are clearly

erroneous or arbitrary and capricious.

(e) In cases arising from conviction or indictment, or in which

there are no disputes of material fact, the Senior Procurement

Executive, or designee, conducts the hearing required by FAR 3.204(b).

(f) If the Gratuities clause was violated, the contractor may

present evidence of mitigating factors to the Senior Procurement

Executive, or designee, either orally or in writing, in accordance with

a schedule the Senior Procurement Executive, or designee, establishes.

The Senior Procurement Executive, or designee, exercises the

Government's rights under FAR 3.204(c) only after considering

mitigating factors.

Subpart 503.4--Contingent Fees

503.404 Contract clause.

Insert 552.203-5, Covenant Against Contingent Fees, in

solicitations and contracts for the acquisition of leasehold interests

in real property expected to exceed $100,000.

Subpart 503.5--Other Improper Business Practices

503.570 Advertising.

503.570-1 Policy.

GSA policy precludes contractors from referring to GSA contracts in

commercial advertising in a manner that states or implies the

Government approves or endorses the product or service or considers it

superior to other products or services. The intent of this policy is to

prevent the appearance of Government bias toward any product or

service.

503.570-2 Contract clause.

Insert the clause at 552.203-71, Restriction on Advertising, in

solicitations and contracts, including acquisitions of leasehold

interests in real property, if the contract amount is expected to

exceed the simplified acquisition threshold.

Subpart 503.7--Voiding and Rescinding Contracts

503.702 Definition.

Notice means a letter sent by certified mail with a return receipt

requested to the last known address of a party, its counsel, or agent

for service of process. In the case of a business, such notice may be

sent to any partner, principal officer, director, owner or co-owner, or

joint venturer. If no return receipt is received within 10 calendar

days of mailing, receipt is presumed.

Voiding and rescinding official means the Senior Procurement

Executive or designee.

503.705 Procedures.

(a) Contracting officer's actions:

(1) If a contract is tainted by misconduct, consult with assigned

counsel to determine if the Government has a common law remedy such as

avoidance, rescission, or cancellation.

(2) If the contractor has a final conviction for a violation under

18 U.S.C. 201-224, you may refer the matter to the voiding and

rescinding official under FAR 3.705.

(i) In the referral, identify the final conviction and include the

information required by FAR 3.705(d)(2) through (5).

(ii) Coordinate the referral with the Office of Inspector General

to determine whether to recommend debarment.

(3) You may postpone a decision to exercise the Government's common

law right to void, rescind, or cancel a contract until completion of

legal proceedings against the contractor.

(b) Voiding and rescinding official's actions:

(1) The voiding and rescinding official reviews the referral and

coordinates with assigned counsel and the contracting activity.

(2) If the official decides to declare void and rescind a contract

and to recover the amounts expended and the property transferred, the

official takes both the following actions:

(i) Issues the notice required by FAR 3.705.

(ii) Conducts the hearing contemplated by FAR 3.705(c)(3).

(3) In case of a dispute of material fact about the agency

decision, the official refers the matter to the fact-finding official

designated by the Chairman of the GSA Board of Contract Appeals. The

voiding and rescinding official makes this referral if the dispute of

fact relates to any of the following:

(i) Contracts affected by the final conviction.

(ii) Amounts expended and property transferred by the Government

under the affected contracts.

(iii) Identity and value of any tangible benefits received by the

Government under the affected contracts.

(4) The voiding and rescinding official issues GSA's final decision

under FAR 3.705(e) after receiving the fact-finding official's report,

if a referral was made. The voiding and rescinding official may reject

the fact-finding official's findings only if they are clearly erroneous

or arbitrary and capricious.

(5) The official coordinates the final decision was the contracting

activity and provides the activity a copy of the decision.

takes all the following actions:

(1) Gives the contractor an opportunity to dispute material facts.

(2) Conducts the proceedings under rules consistent with FAR

3.705(c)(3).

(3) Schedules a hearing within 20 calendar days after receiving the

referral. The official may grant extensions for good cause at the

request of the contractor or GSA.

(4) Delivers written findings of fact to the voiding and rescinding

official (together with a transcription of the proceeding, if made)

within 20 calendar days after the hearing record closes. The findings

must resolve any material disputes of fact by a preponderance of the

evidence.

PART 504--ADMINISTRATIVE MATTERS

Subpart 504.4--Safeguarding Classified Information Within Industry

Sec.

504.402 General

504.475 Return of classified information

Subpart 504.5--Electronic Commerce in Contracting

504.500 Scope of subpart

504.502 Policy

504.570 Procedures for using the EPS

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

Subpart 504.4--Safeguarding Classified Information Within Industry

504.402 General.

(a) This subpart:

[[Page 37206]]

(1) Prescribes procedures for safeguarding classified information

required to be disclosed to contractors in connection with the

solicitation of offers, and the award, performance, and termination of

contracts.

(2) Implements the requirements of the Department of Defense's

Industrial Security Regulation (ISR) and Industrial Security Manual for

Safeguarding Classified Information (ISM). By agreement, the Department

of Defense (DOD) will act for, and on behalf of, GSA in rendering

security services required for safeguarding classified information

released by GSA to U.S. industry.

(b) As used in this subpart, the term:

(1) ``Contractor(s)'' means prospective contractors,

subcontractors, vendors, and suppliers.

(2) ``U.S. industry'' means those industries (including educational

and research institutions) located within the United States, its

possessions, and the Commonwealth of Puerto Rico.

504.475 Return of classified information.

(a) You must recover classified information unless it has been

destroyed as provided in paragraph 19 of the ISM. The Government agency

that provided classified information to a GSA contractor is responsible

for the return of the information.

(b) You must ensure that classified information furnished to

prospective offerors, offerors, or contractors is returned immediately

after any of the following:

(1) After bid opening or closing date for receipt of proposals by

non-responding offerors.

(2) After contract award by unsuccessful offerors.

(3) Upon termination or completion of the contract.

(4) Upon notification that authorization to release classified

information has been withdrawn.

(5) After notification that a facility:

(i) Does not have adequate means to safeguard classified

information.

(ii) Has had its security clearance revoked or inactivated.

(6) Whenever otherwise instructed by the authority responsible for

the security classification.

Subpart 504.5--Electronic Commerce in Contracting

504.500 Scope of subpart.

This subpart provides policy and procedure for use of GSA's

Electronic Posting System (EPS).

504.502 Policy.

(a) The EPS is GSA's primary vehicle for disseminating synopses and

written solicitations. GSA intends that the EPS will substitute for,

not supplement, paper copies of solicitations. (Note that FAR 2.101

defines ``in writing'' or ``written'' to include ``electronically

transmitted and stored information.'')

(b) This policy does not apply to orders placed against existing

contracts, including Federal Supply Service schedule contracts.

quotations or proposals as authorized by regulation (e.g., FAR 13.106-1

or FAR 15.203(f)).

504.570 Procedures for using the EPS.

(a) You must use the EPS to issue any synopsis required by FAR part

5 or GSAR part 505.

(b) You must issue each written solicitation on the EPS, except as

provided in paragraphs (c)(2) and (d) of this section.

copies of solicitations, web-based transactions are not practical in

some industries or in some geographic areas at this time.

(1) If you expect that electronic access to a solicitation will

result in adequate competition, distribute the solicitation only

through the EPS. Include the following notice in the related synopsis:

GSA is issuing this solicitation only electronically. Interested

parties may access the solicitation at http://www.eps.gov. This site

provides instructions for downloading the solicitation file.

(2) If you believe that distribution of paper copies is necessary

to ensure adequate competition, document the file to justify

distribution of paper copies. Include the notice in paragraph (c)(1) of

this section in the related synopsis, leaving out the first sentence.

(d) In some cases, release of construction drawings must be

controlled to ensure adequate security. In other cases, an exhibit or

attachment incorporated in a solicitation may not be available

electronically. In either of these cases, you must explain in both the

synopsis and the solicitation how interested parties may obtain a copy.

In addition to the notice required by paragraph (c), include a notice

substantially the same as follows in both the synopsis and

solicitation. Tailor the notice as necessary for the particular

acquisition.

This solicitation incorporates documents which are not available

electronically. See [Identify the solicitation section that lists

the subject documents]. Interested parties may request copies of

these documents by writing the Contracting Officer at the address in

[Identify address block in the solicitation].

(e) The Electronic Posting System Manual provides detailed

instructions for using the EPS. The Manual is available at http://

www.eps.gov/buyer.html.

SUBCHAPTER B--COMPETITION AND ACQUISITION PLANNING

PART 505--PUBLICIZING CONTRACT ACTIONS

Subpart 501.1--Dissemination of Information

Sec.

505.101 Methods of disseminating information

Subpart 505.2--Synopses of Proposed Contract Actions

505.202 Exceptions

505.203 Publicizing and response time

501.270 Synopsis of amendments to solicitations

Subpart 505.5--Paid Advertisements

505.502 Authority

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

Subpart 505.1--Dissemination of Information

505.101 Methods of disseminating information.

(a) In Regions with a Business Service Center (BSC), you may post

the notice required by FAR 5.101(a)(2) at the BSC.

(b) Use GSA's Electronic Posting System (EPS) to issue each

synopsis required by FAR part 5 or GSAR part 505. When synopsizing a

solicitation, include the appropriate notice(s) required by 504.570(c)

and (d).

------------------------------------------------------------------------

Then you must publicize

If the acquisition is not exempt under FAR the proposed acquisition--

5.202 or GSAR 505.202, and--

------------------------------------------------------------------------

(1) The acquisition is for real property (1) Either:

appraisal services estimated to cost $25,000 (i) In local

or more. newspapers.

(ii) In the Commerce

Business Daily through

the EPS.

[[Page 37207]]

(2) The acquisition is for leasehold (2) Either:

interests in real property estimated to (i) In local

exceed 10,000 square feet (except lease newspapers.

construction on a preselected site). (ii) In the Commerce

Business Daily through

the EPS.

(3) The acquisition is for a leasehold (3) In the Commerce

interest in a building to be constructed on Business Daily through

a preselected site. the EPS.

------------------------------------------------------------------------

(d) You may publicize proposed leases of 10,000 square feet or less

in local newspapers if it will serve to promote competition.

Subpart 505.2--Synopses of Proposed Contract Actions

505.202 Exceptions.

The Administrator has determined under section 18(c)(3) of the

Office of Federal Procurement Policy Act, as amended (41 U.S.C.

416(c)(3)) and Section 8(g)(3) of the Small Business Act, as amended

(15 U.S.C. 644(g)(3)) that:

(a) Synopsizing in the CBD is not always appropriate for

acquisitions of leasehold interests in real property (except lease

construction on a designated site) or real property appraisal

services.Your may publicize such contract actions following the

procedures in 505.101 and 505.203.

(b) It is not appropriate or reasonable to publish an advance

notice of any of the following:

(1) Acquisitions of works of art, including the design, execution

and installation of the artwork, under the Art-in-Architecture Program.

(2) Supplemental agreements to leases of real property involving

any of the following:

(i) Expansion requests within the scope of a lease (see 570.403).

(ii) Lease extensions under the conditions defined in 570.405.

(iii) Building alterations within the scope of a lease (see 570.5).

505.203 Publicizing and response time.

(a) If you publicize in local newspapers under 505.101(c), ensure

that the notice appears in local newspapers at least 3 calendar days

before issuance of the solicitation. Except as provided in paragraph

(B) of this section, allow at least these minimum response times:

(1) For leasehold interests in real property, 20 calendar days

between solicitation issuance and the date established for receipt of

initial offers.

(2) For real property appraisal services valued at less than either

the Trade Agreements Act (TAA) threshold or the North American Free

Trade Agreement (NAFTA) threshold, 10 calendar days between

solicitation issuance and the date established for receipt of initial

offers. The lower of the two thresholds governs.

(3) For real property appraisal services valued at or over the TAA

threshold or the NAFTA threshold, 40 calendar days from when the notice

appears to receipt of initial offers. If the acquisition falls in a

general category identified in an annual forecast, the period may be

reduced to as few as 10 days. The lower of the two thresholds governs.

(b) The following exceptions to the publicizing and response times

in paragraph (a) of this section apply only to proposed acquisitions of

leasehold interests in real property:

(1) For a proposed acquisition conducted using simplified lease

acquisition procedures (see 570.2), consider the individual acquisition

and establish a reasonable response time.

(2) In cases of urgency, provide as much time as possible and

document the file.

505.270 Synopsis of amendments to solicitations.

Synopsize in the CBD any solicitation amendment when the amendment

either:

(a) Increases the anticipated value of the proposed acquisition

above the dollar threshold requiring synopsis.

(b) Alters the scope of the proposed acquisition so that increased

interest of contractors can be reasonably anticipated.

Subpart 505.5--Paid Advertisements

505.502 Authority.

(a) Newspapers. The HCA, or designee, must approve publication of

paid newspaper advertisements. Approval is not required if FAR 5.101 or

505.101 requires publication. Document the contract file with the

regulatory citation or written approval to support the use of paid

newspaper advertisements.

(b) Other media. Advance approval is not required to advertise in

other media.

PART 509--Contractor Qualifications

Subpart 509.1--Responsible Prospective Contractors

Sec.

509.105 Procedures

509.105-1 Obtaining information

509.105-2 Determinations and documentation

509.106 Preaward surveys

509.106-2 Requests for preaward surveys

Subpart 509.2--Qualifications Requirements

509.206 Acquisitions subject to qualification requirements

509.206-2 Contract clause

Subpart 509.3--First Article Testing and Approval

509.306 Solicitation requirements

509.308 Contract clauses

509.308-1 Testing performed by the contractor

509.308-2 Testing performed by the Government

Subpart 509.4--Debarment, Suspension, and Ineligibility

509.401 Applicability

509.403 Definitions

509.405 Effect of listing

509.405-1 Continuation of current contracts

509.405-2 Restrictions on subcontracting

509.406 Debarment

509.406-1 General

509.406-3 Procedures

509.407 Suspension

509.407-1 General

509.407-3 Procedures

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

Subpart 509.1--Responsible Prospective Contractors

509.105 Procedures.

509.105-1 Obtaining information.

(a) From a prospective contractor. In making a determination of

responsibility, you may use the GSA Form 527, Contractor's

Qualification and Financial Information, to obtain information

regarding financial capability from a prospective contractor.

(b) From Government personnel. Solicit and consider information

from all appropriate activities, including legal counsel, quality

control, contract management, credit and finance, and the auditor

before determining that an offeror is responsible. ``Auditor'' is

either:

[[Page 37208]]

(1) The Assistant Inspector General for Auditing (Central Office

only).

(2) The Regional Inspector General for Auditing.

(3) Chief, Credit and Finance Section, the Heartland Region (for an

evaluation of a prospective contractor's financial competence and

credit).

509.105-2 Determinations and documentation.

(a) Provide written notification to a prospective contractor you

determine not responsible. Include the basis for the determination.

Notification provides the prospective contractor with the opportunity

to correct any problem for future solicitation.

(b) Due to the potential for de facto debarment, avoid making

repeated determinations of nonresponsiblity based on the same past

performance information.

action to debar a contractor, submit a copy of each nonresponsibility

determination, other than those based on capacity or financial

capability, to the debarring official.

509.106 Preaward surveys.

509.106-2 Requests for preaward surveys.

Federal Supply Service (FSS). Contracting activities in FSS may use

GSA Form 353, Performance Evaluation & Facilities Report, in lieu of SF

1403 through 1406. Complete Section I in accordance with instructions

in 553.370-353-I.

Subpart 509.2--Qualifications Requirements

509.206 Acquisitions subject to qualification requirements.

509.206-2 Contract clause.

Insert 552.209-70, Product Removal from Qualified Products List, in

solicitations and contracts containing FAR 52.209-1, Qualification

Requirements.

Subpart 509.3--First Article Testing and Approval

509.306 Solicitation requirements.

(a) The clauses at FAR 52.209-3 and 52.209-4 do not cover all the

solicitation requirements described in FAR 9.306. If a solicitation

contains a testing and approval requirement, you must address the

requirements in FAR 9.306 (d), (f), (g), (h), (i), and (j). For FSS,

the clauses prescribed in 509.308 address the requirement in FAR

9.306(h).

(b) In FSS solicitations that contain FAR 52.209-3, First Article

Approval--Contractor Testing, or FAR 52.209-4, First Article Approval--

Government Testing, insert 552.209-71, Waiver of First Article Testing

and Approval Requirement.

509.308 Contract clauses.

509.308-1 Testing performed by the contractor.

In FSS solicitations and contracts that will require the contractor

to perform testing, insert 552.209-72, Supplemental Requirements for

First Article Approval--Contractor Testing, and FAR 52.209-3, Alternate

509.308-2 Testing performed by the Government.

In FSS solicitations and contracts that will have the Government

responsible for first article testing, insert 552.209.73, Supplemental

Requirements for First Article Approval--Government Testing, and FAR

52.209-4, Alternate I.

Subpart 509.4--Debarment, Suspension, and Ineligibility

509.401 Applicability.

This subpart applies to all the following:

(a) Acquisitions of personal property, nonpersonal services

(including construction), space in buildings, transportation services

(Federal Property Management Regulations (FPMR) Subpart 101-40.4).

(b) The purchase, sale, and disposal of real property.

45.6).

(d) Covered transactions as defined at General Services Property

Management Regulations (GSPMR) 105-68.110(a).

509.403 Definitions.

Fact-finding official, means the Chairman of the Debarment and

Suspension Board within the GSA Board of Contract Appeals or a

designee.

Notice means a letter sent by certified mail, return receipt

requested, to the last known address of a party, its counsel, or agent

for service of process. In the case of a business, such notice may be

sent to any partner, principal officer, director, owner or co-owner, or

joint venturer. If no return receipt is received within 10 calendar

days of mailing, receipt will then be presumed.

509.405 Effect of listing.

509.405-1 Continuation of current contracts.

(a) Consider terminating a current contract under any of the

following circumstances:

(1) Any of the circumstances giving rise to the debarment or

suspension also constitute a default in the contractor's performance of

the contract.

(2) The contractor presents a significant risk to the Government in

completing the contract.

(3) The conduct that provides the cause of the suspension, proposed

debarment, or debarment involved a GSA contract.

(b) Determine which of the following is in the Government's best

interest:

(1) Terminate the contract for either convenience or cause.

(2) Cancel under appropriate contract clauses (e.g., 552.238-73,

Cancellation).

(3) Use other available alternatives under:

(i) FAR 3.2 and 503.2.

(ii) FAR 3.7 and 503.7.

consider these factors:

(1) Seriousness of the cause for debarment or suspension.

(2) Extent of contract performance.

(3) Potential costs of termination and reprocurement.

(4) Need for or urgency of the requirement, contract coverage, and

the impact of delay for reprocurement.

(5) Availability of other safeguards to protect the Government's

interest until completion of the contract.

(6) Availability of alternate competitive sources to meet the

requirement (e.g., other multiple award contracts, readily available

commercial items, etc.).

(d) The debarring official is the designee under FAR 9.405-1(c).

509.405-2 Restrictions on subcontracting.

The debarring official is the designee under FAR 9.405-2(a).

509.406 Debarment.

509.406-1 General.

The debarring official is the designee under FAR 9.406-1(c).

509.406-3 Procedures.

(a) Investigation and referral.

(1) Refer to the debarring official matters involving serious

contract improprieties or performance deficiencies. Performance

deficiencies that continue over a period of time or apply to more than

one contract may warrant debarment consideration.

(2) Refer possible criminal or fraudulent activities to the Office

of the Inspector General (OIG). See 5 CFR 6701.107, Reporting Waste,

Fraud, Abuse, and Corruption. If, after investigation, the OIG believes

a cause for debarment exists, it will refer the matter to the debarring

official for consideration of debarment action.

[[Page 37209]]

(b) Reports. Include in referrals to the debarring official a

report that contains at least the following:

(1) The recommendation and supporting rationale.

(2) A list of parties to be considered for possible debarment,

including the contractor, principals, and affiliates. Include last

known home and business addresses, zip codes, and DUNS Number.

(3) A statement of facts.

(4) Copies of documentary evidence and a list of witnesses. Include

addresses and telephone numbers. Determine their availability to appear

at a fact-finding proceeding and identify the subject matter of their

testimony.

(5) GSA's acquisition history with the contractor. Include recent

experience, copies of the pertinent contracts, and an explanation of

impact debarment would have on GSA programs. OIG referrals do not

require this explanation; the debarring official will obtain the

information directly from the contracting activity(s).

(6) A list of any known active or potential criminal

investigations, criminal or civil proceedings, or administrative claims

before the Board of Contract Appeals.

(7) A statement regarding the impact of the debarment action on GSA

programs. This statement is not required for referrals by the Inspector

General; the debarring official will obtain a statement directly from

the contracting activity(s).

after coordinating with assigned legal counsel, either:

(1) Initiate debarment action.

(2) Decline debarment action.

(3) Request additional information.

(4) Refer the matter to the OIG for further investigation and

development of a case file.

(d) Decisionmaking process.

(1) The debarring official will provide:

(i) Notice of declinations, proposed debarments, and decisions to

the referring activity.

(ii) Notice of proposed debarment to each party being considered

for debarment.

(iii) Decision notices to each party after considering information

in the administrative record and information and argument submitted by

the affected party or parties.

(2) A party proposed for debarment:

(i) Has 30 calendar days after receipt of the notice to respond to

the debarring official or the debarment becomes final.

(ii) May request and receive a copy of the administrative record

that was the basis for the proposed debarment. If information is

withheld, the party will be notified and provided the reason.

(iii) May request the opportunity to present information and

argument in person to the debarring official. The debarring official

will schedule an oral presentation within 20 calendar days of receipt

of the request, unless a longer period of time is requested by the

party. An oral presentation is informal and a transcript usually is not

made. The party may supplement the oral presentation with written

information and arguments.

(iv) May identify to the debarring official material facts in

dispute and the bases. For an action other than one based on a

conviction of civil judgment, a party may request review and a written

finding by a fact-finding official.

(3) The debarring official will determine whether there is a

genuine dispute of material fact. If so, the debarring official refers

the matter to a fact-finding official, who will take the following

action as appropriate:

(i) Schedule a hearing within 20 calendar days after receipt of a

request to resolve disputed facts.

(ii) Grant extensions for good cause.

(iii) Provide notice of scheduled hearing.

(iv) Conduct hearings under rules consistent with FAR 9.406-

3(b)(2).

(v)Resolve facts in dispute and provide the debarring official with

written findings of fact based on a preponderance of the evidence. The

fact-finding official provides the written findings of fact (together

with a transcription of the proceeding, unless waived) within 20

calendar days after the hearing record closes.

509.407 Suspension.

Sec. 509.407-1 General.

The suspending official is the designee under FAR 9.407-1(d).

Sec. 509.407-3 Procedures.

(a) General. The procedures in 509.406-3 apply to suspension

actions except as noted in paragraph (b) of this section.

(b) Fact-finding.

(1) Fact-finding will not be conducted in an action:

(i) Based on an indictment.

(ii) When the suspending official finds no genuine dispute of

material facts.

(2) If the action is not based on an indictment, the suspending

official must coordinate with the Department of Justice or state

prosecutorial authority through OIG. Based on the advice received, the

suspending official will determine if fact-finding would impair

substantial interests of the Federal or state Government. In an action

not based on an indictment, a suspended party may:

(i) Identify to the suspending official material facts in dispute

and the bases.

(ii) Request review and a written finding by a fact-finding

official to resolve genuine disputes of material fact. For procedures

involving a genuine dispute of material fact, see 509.406-3(d)(3).

PART 511--DESCRIBING AGENCY NEEDS

Subpart 511.1--Selecting and Developing Requirements Documents

Sec.

511.170 Use of brand name or equal product descriptions

511.170-3 Solicitation provisions

Subpart 511.2--Using and Maintaining Requirements Documents

511.204 Solicitation provisions and contract clauses

Subpart 511.4--Delivery or Performance Schedules

511.404 Contract clauses

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

Subpart 511.1--Selecting and Developing Requirements Documents

511.170 Use of brand name or equal product descriptions.

511.170-3 Solicitation provisions.

(a) Include the following immediately after each brand name or

equal item description, with instructions for the offeror to complete

the information:

Offering on:

Manufacturer's Name----------------------------------------------------

Brand------------------------------------------------------------------

Model or Part No.------------------------------------------------------

(b) If the solicitation does not require samples for ``or equal''

offers, include the following notice in the list of brand name or equal

items or component parts:

Notice

If you offer other than brand name items identified in this

solicitation, you must provide adequate information for GSA to

determine the quality of the product(s) offered.

552.211-70, Brand Name or Equal, when you use a brand name or equal

purchase description.

(d) If you use brand name or equal descriptions for component parts

of an end item and the provision at 552.211-70 is impractical for some

or all of the components, you may either:

(1) Not use the provision.

(2) Limit its application to specified components.

[[Page 37210]]

Subpart 511.2--Using and Maintaining Requirements Documents

511.204 Solicitation provisions and contract clauses.

(a) Construction services. Insert the clause at 552.211-71,

Standard References, in solicitations and contracts for construction

services when you expect the contract amount to exceed the simplified

acquisition threshold, and the solicitation meets either of the

following conditions:

(1) The solicitation cites documents or publications not furnished

with the solicitation.

(2) The solicitation incorporates documents or publications by

reference.

(b) Federal specifications. Insert the clause at 552.211-72,

Reference to Specifications in Drawings, in solicitations and contracts

citing Federal specifications which contain drawings.

threshold.

(1) Include the clause at 552.211-73, Marking, 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.

(2) Include the clause at 552.211-74, Charges for Marking, in

solicitations and contracts that include the clause at 552.211-73 or a

similar clause.

(3) Include the clause at 552.211-75, Preservation, Packaging and

Packing, in solicitations and contracts for supplies expected to exceed

the simplified acquisition threshold. You may also include the clause

in contracts estimated to be at or below the simplified acquisition

threshold when appropriate.

(4) Insert a clause substantially the same as the clause at

552.211-76, Charges for Packaging and Packing, in solicitations and

contracts for supplies to be delivered to GSA distribution centers.

(d) Supply contracts. Include the clause at 552.211-77, Packing

List, in solicitations and contracts for supplies, including purchases

over the micropurchase threshold.

Subpart 511.4--Delivery or Performance Schedules

511.404 Contract clauses.

(a) Supply contracts.

(1) Single award schedules. Insert 552.211-8, Time of Delivery, in

solicitations and contracts instead of the clause at FAR 52.211-8. If

you need to show different delivery times for different items or groups

of items, use Alternate I.

(2) Multiple award schedules. Insert 552.211-78, Commercial

Delivery Schedule (Multiple Award Schedule), in solicitations issued

and contracts awarded under the multiple award schedule program.

(3) 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

(see 101-27.206-2 of the Federal Property Management Regulation):

(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 commodity center

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.

(4) 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.

(5) Notice of shipment. Include 552.211-82, Notice of Shipment, in

solicitation and contracts for supplies when you need to have a notice

of shipment from the contractor.

(6) 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, Non-

Compliance with Contract Requirements, in solicitations and contracts

for construction when you expect the contract amount to exceed the

simplified acquisition threshold.

PART 512--ACQUISITION OF COMMERCIAL ITEMS

Subpart 512.3--Solicitation Provisions and Contract Clauses for the

Acquisition of Commercial Items

Sec.

512.301 Solicitation provisions and contract clauses for the

acquisition of commercial items

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

Subpart 512.3--Solicitation Provisions and Contract Clauses for the

Acquisition of Commercial Items

512.301 Solicitation provisions and contract clauses for the

acquisition of commercial items.

(a) Solicitation provisions and clauses. Insert these provisions or

clauses in solicitations or solicitations and contracts, respectively,

in accordance with the instructions provided:

(1) 552.212-70, Preparation of Offer (Multiple Award Schedule), in

solicitations and contracts issued under the multiple award schedule

program.

(2) 552.213-71, Contract Terms and Conditions Applicable to GSA

Acquisition of Commercial Items, when listed clauses apply. The clause

provides for incorporation by reference of terms and conditions which

are, to the maximum extent practicable, consistent with customary

commercial practice. If necessary, tailor this clause.

(3) 552.212-72, Contract Terms and Conditions Required to Implement

Statutes of Executive Orders Applicable to GSA Acquisitions of

Commercial Items, when listed clauses apply.

(i) 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.

(ii) As a result of the General Services Administration Board of

Contract Appeals (GSBCA) decision in the protest of International

Business Machines Corporation GSBCA 90-2 BCA P22,924, May 18, 1990, GSA

solicitations and contracts will deviate from FAR 52.225-8, Buy

American Act-Trade Agreements-Balance of Payments Program Certificate.

Incorporate 552.225-8, Buy American Act-Trade Agreements-Balance of

Payments Program Certificate, and 552.225-9, Buy American Act-Trade

Agreements-Balance of Payments Program, in solicitations and contracts

subject to the Trade Agreement Act. Use them instead of FAR 52.225-8

and 52.225-9 (referenced in FAR 52.212-3 and 52.212-5 respectively).

[[Page 37211]]

(4) 552.213-73, Evaluation-Commercial Items (Multiple Award

Schedule), in multiple award schedule solicitations. Use this provision

instead of FAR 52.212-2.

(b) Use of required provisions and clauses. Use only those

provisions and clauses prescribed in this part. Unless the use of a

provision or clause prescribed elsewhere in the GSAR is consistent with

customary commercial practice for the item being acquired, disregard

contrary instructions. Provisions and clauses prescribed in this part

will be revised to reflect the applicability of new statutes and

executive orders.

with the limitations contained in FAR 12.302(c), include in

solicitations and contracts by addendum other GSAR provisions and

clauses.

(d) Use of additional provisions and clauses. The Senior

Procurement Executive must approve the use of a provision or clause

that is either not:

(1) Prescribed in the FAR or GSAR for use in contracts for

commercial items.

(2) Consistent with customary commercial practice.

SUBCHAPTER C--CONTRACTING METHODS AND CONTRACT TYPES

PART 513--SIMPLIFIED ACQUISITION PROCEDURES

Subpart 513.3--Simplified Acquisition Methods

Sec.

513.302 Purchase orders.

513.302-70 Purchase orders and related forms.

513.303 Blanket purchase agreements (BPAs).

513.303-3 Preparation of BPAs.

513.307 Forms.

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

Subpart 513.3--Simplified Acquisition Methods

513.302 Purchase orders.

513.302-70 Purchase order and related forms.

(a) See GSA Order, Interim Guidance on Use of the Governmentwide

Commercial Purchase Card Service (OAD 4200.8), for forms required for

purchase card actions.

(b) Use GSA Form 3000 or 300-1 (pin-feed format), Order for

Supplies and Services, instead of OF 347, Order for Supplies or

Services, when making purchases payable through the National Electronic

Accounting and Reporting (NEAR) System.

(1) This form may also be used to make other purchases when a

specific form is not prescribed. It may be used as a delivery or task

order instead of SF 1449, Solicitation/Contract/Order for Commercial

Items.

(2) Prepare and process GSA Form 300 following the instructions at

553.370-300-I. Use GSA Form 300A or 300-A(1) (pin-feed format), order

for Supplies or Services (continuation), if additional space is needed.

Purchase Order, instead of the OF 347 when making purchases in

connection with the maintenance, servicing or repair of GSA fleet

management vehicles.

(d) Use GSA Form 3186, Order for Supplies or Services or GSA Form

3186-B, Order for Supplies or Services (EDI), instead of OF 347, Order

for Supplies or Services, when making simplified acquisitions or

placing orders against established contracts through the FSS-19 system.

(1) Use GSA Form 3186 for mail orders placed against established

contracts.

(2) Document the file for a delivery, task, or purchase order

transmitted to contractors electronically using Electronic Data

Interchange (EDI) procedures by generating a GSA Form 3186-B.

(e) Use GSA Form 8002B, Motor Vehicle Delivery Order, to order

fleet management vehicles. Do not use this form as a purchase order for

simplified acquisitions. Use GSA Form 8002A to notify the consignee of

the status of motor vehicle requisitions.

513.303 Blanket purchase agreements (BPAs).

513.303-3 Preparation of BPAs.

(a) Description of agreement. Describe limitations, if any, on the

geographic area to be served.

(b) Delivery tickets. Instruct the contractor to include the name

of the individual placing the order on the delivery ticket. The

individual receiving the item or service must sign and date the

delivery or service ticket. Both the supplier and the receiving office

must retain a copy of the delivery ticket.

513.307 Forms.

You may use the GSA Form 3521, Blanket Purchase Agreement, to

prepare a blanket purchase agreement.

PART 514--SEALED BIDDING

Subpart 514.2--Solicitation of Bids

Sec.

514.201 Preparation of invitations for bids.

514.201-1 Uniform contract format.

514.201-2 Part I--The Schedule.

514.201-6 Solicitation provisions.

514.201-7 Contract clauses.

514.202 General rules for solicitation of bids.

514.202-4 Bid samples.

514.203 Methods of soliciting bids.

514.203-1 Transmittal to prospective bidders.

514.270 Aggregate awards.

514.270-1 Definition.

514.270-2 Guidelines for use.

514.270-3 Evaluation factors for award.

514.270-4 Grouping line items for aggregate award.

514.270-5 Evaluation methodologies for aggregate awards.

514.270-6 Guidelines for using the weight factors method.

514.270-7 Guidelines for using the price list method.

Subpart 514.4--Opening of Bids and Award of Contract

514.407 Mistakes in bids.

514.407-3 Other mistakes disclosed before award.

514.407-4 Mistakes after award.

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

Subpart 514.2--Solicitation of Bids

514.201 Preparation of invitations for bids.

514.201-1 Uniform contract format.

Include the following notice in each solicitation:

The information collection requirements contained in this

solicitation/contract, are either required by regulation or approved

by the Office of Management and Budget pursuant to the Paperwork

Reduction Act and assigned OMB Control No. 3090-0162.

514.201-2 Part I--The Schedule.

(a) When you use Standard Form 33, Solicitation, Offer and Award,

include the following cautionary notice:

Notice to Bidders--Use Item 13 of the Standard Form 33,

Solicitation, Offer and Award, to offer prompt payment discounts.

The Prompt Payment clause of this solicitation sets forth payment

terms. Do not insert any statement in Item 13 which requires payment

sooner than the time stipulated in the Prompt Payment clause.

Example: If you insert ``NET 20'' in Item 13, GSA will reject your

offer as nonresponsive because the entry contradicts the 30 day

payment terms specified in the Prompt Payment clause.

(b) When you use any other authorized form (e.g., Standard Form

1447, Solicitation/Contract), include the notice in paragraph (a) of

this section. Change the reference to the form number, form title, and

item number accordingly.

Sec. 514.201-6 Solicitation provisions.

When you will consider all or none bids, insert the provision at

552.214-70, ``All or None'' Offers, in the solicitation. For

requirements or indefinite quantity

[[Page 37212]]

contracts, use Alternate I. Do not include this provision in

solicitations when you require the bidder to submit bids on all items

and will make only one award.

514.201-7 Contract clauses.

(a) Stock replenishment contracts. For some stock replenishment

contracts, individual contractors may be unable to furnish the

Government's monthly requirements. You may determine that progressive

awards will be more expedient. In such cases, insert a clause

substantially the same as the clause 552.214-71, Progressive Awards and

Monthly Quantity Allocations, in the solicitation and contract.

(b) Examinations of Records.

(1) Insert 552.214-70, Examination of Records by GSA, in

solicitations and contracts for supplies or services that exceed

$100,000, and acquisitions of leasehold interests in real property that

exceed the simplified lease acquisition threshold, that meet at least

one of the following conditions:

(i) Involve the use or disposition of Government-furnished

property.

(ii) Provide for advance payments, progress payments based on cost,

or guaranteed loan.

(iii) Contain a price warranty or price reduction clause.

(iv) Include an economic price adjustment clause where the

adjustment is not based solely on an established, third party index.

(v) Are requirements, indefinite-quantity, or letter contracts as

defined in FAR part 16.

(vi) Contain the provision at FAR 52.223-4, Recovered Materials

Certification.

(2) You may modify the clause to define the specific area of audit

(e.g., the use or disposition of Government-furnished property). Legal

Counsel and the Assistant Inspector General--Auditing or Regional

Inspector General--Auditing, as appropriate, must concur in any

modifications to the clause.

514.202 General rules for solicitation of bids.

514.202-4 Bid samples.

(a) Solicitation requirements.

(1) When you require bid samples, require bidders to submit samples

produced by the manufacturer whose products will be supplied under the

contract.

(2) The FAR limits use of bid samples to cases where you cannot

describe some characteristics of a product adequately in the

specification or purchase description. This usually applies to

subjective characteristics. You may determine that you need to examine

objective characteristics of bid samples to determine the

responsiveness of a bid. Base your determination on past experience or

other valid considerations. In the solicitation, separately list

``Subjective Characteristics'' and ``Objective Characteristics.''

(3) A sample provision appears at 552.214-72, Bid Sample

Requirements. You may use this provision as shown or modify it to fit

the circumstances of a procurement.

(b) Handling and disposition of samples.

(1) Retain samples from accepted bids for the period of contract

performance. If you have no outstanding claims regarding the contract,

dispose of the samples at the end of the contract term following the

bidder's instructions.

(2) If you anticipate a claim regarding the contract, retain the

bid samples until the claim is resolved.

(3) Retain samples from unsuccessful bids until you make award.

After award, dispose of these samples following the bidder's

instructions.

14.202-4(e) in the solicitation. Provide the number, size, and full

description of samples with instructions on how to submit bids. List

the characteristics that you will examine. The list needs to include

any aspect of the bid sample the acquisition team will examine to

determine the product(s) acceptability.

514.203 Methods of soliciting bids.

514.203-1 Transmittal to prospective bidders.

Prospective bidders, as used in FAR 14.203-1, include both the

following:

(a) The incumbent contractor, except when its written response to

the notice of contract action under FAR subpart 5.2 states a negative

interest.

(b) Bidders that responded to recent solicitations for the same or