# General Services Acquisition Regulation; GSAR Case 2006-G507; Rewrite of GSAR Part 538, Federal Supply Schedule Contracting

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URL: https://www.frixlaw.com/law-library/documents/fr%3AE9-1096

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** January 26, 2009
- **Citation:** 74 FR 4596

## Text

GENERAL SERVICES ADMINISTRATION
48 CFR Part 538
[GSAR Case 2006-G507; Docket 2009-0013; Sequence 1]
RIN 3090-AI77
General Services Acquisition Regulation; GSAR Case 2006-G507; Rewrite of GSAR Part 538, Federal Supply Schedule Contracting

AGENCY:

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

ACTION:

Proposed rule.

SUMMARY:

The GSA is proposing to amend the General Services Administration Acquisition Regulation (GSAR) to revise sections of the GSAR that provide requirements for Federal Supply Schedule Contracting actions.

DATES:

Interested parties should submit written comments to the Regulatory Secretariat on or before March 27, 2009 to be considered in the formulation of a final rule.

ADDRESSES:

Submit comments identified by GSAR Case 2006-G507 by any of the following methods:

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

Submit comments via the Federal eRulemaking portal by inputting “GSAR Case 2006-G507” under the heading “Comment or Submission”. Select the link “Send a Comment or Submission” that corresponds with GSAR Case 2006-G507. Follow the instructions provided to complete the “Public Comment and Submission Form”. Please include your name, company name (if any), and “GSAR Case 2006-G507” on your attached document.

• Fax: 202-501-4067.

• Mail: General Services Administration, Regulatory Secretariat (VPR), 1800 F Street, NW., Room 4041, ATTN: Hada Flowers, Washington, DC 20405.

Instructions:
Please submit comments only and cite GSAR Case 2006-G507 in all correspondence related to this case. All comments received will be posted without change to
http://www.regulations.gov
, including any personal and/or business confidential information provided.

FOR FURTHER INFORMATION CONTACT:

For clarification of content, contact Mr. Warren Blankenship at (202) 501-1900, or by e-mail at
warren.blankenship@gsa.gov
. For information pertaining to the status or publication schedules, contact the Regulatory Secretariat (VPR), Room 4041, GS Building, Washington, DC 20405, (202) 501-4755. Please cite GSAR Case 2006-G507.

SUPPLEMENTARY INFORMATION:

A. Background

The General Services Administration is amending the General Services Administration Acquisition Regulation (GSAR) to update the text addressing GSAR Part 538, Federal Supply Schedule Contracting: Subpart 538.1, Definitions; Subpart 538.4, Administrative Matters; Subpart 538.7, Acquisition Planning; Subpart 538.9, Contractor Qualifications; Subpart 538.12, Acquisition of Commercial Items—FSS; Subpart 538.15, Negotiation and Award of Contracts; Subpart 538.17, Administration of Evergreen Contracts; Subpart 538.19, FSS and Small Business Programs; Subpart 538.25, Requirements for Foreign Entities; Subpart 538.42, Contract Administration and Subpart 538.43, Contract Modifications. This rule is a result of the GSA Acquisition Manual (GSAM) rewrite initiative undertaken by GSA to revise the GSAM to maintain consistency with the Federal Acquisition Regulation (FAR) and to implement streamlined and innovative acquisition procedures that contractors, offerors, and GSA contracting personnel can use when entering into and administering contractual relationships. The GSAM incorporates the GSAR as well as internal agency acquisition policy.

The GSA is in the process of rewriting each part of the GSAR and GSAM, and as each GSAR part is rewritten, will publish it in the
Federal Register
.

This proposed rule covers the GSAR portion of Part 538. The information in Subpart 538.2 is being retained; however, the various sections have been redistributed to more appropriate subparts within the text. Subpart 538.9, Contractor Qualifications, is being added to define the roles and responsibilities of “Contractor Partnering Arrangements (CPAs)” for contractors. Subpart 538.12, Acquisition of Commercial Items, has been added to outline solicitation provisions and clauses. This subpart was formerly 538.273—Contract clauses, but was moved to 538.1203 so as to align with the FAR. Aside from individual prescriptions, GSA has also included an overarching prescription that directs the contracting officer to insert appropriate provisions and clauses, when applicable. Additionally, 96 provisions/clauses are now proposed for inclusion. Some of the provisions/clauses are new, some are being retained, and others are being relocated from other GSAM parts.

Subpart 538.15, Negotiation and Award of Contracts, has been added to provide clarity to FSS contracting officers regarding contract evaluation and award. The current section 538.270, Evaluation of multiple award schedule (MAS) offers, has been relocated to Subpart 538.15. It contains minor revisions within the text to clarify the contracting officer's role as well as a revised title and section, 538.1504, Evaluation of commercial pricing practices. Also, 538.272, MAS price reductions, has been revised for clarity. More specifically, the term “eligible ordering activity” has been changed to “Government” to bring clarity to the relationship between the Government and the contractor, and to ensure that the contractor understands the importance of maintaining this correlation of price relationship for the duration of the contract. The revision can be found at section 538.1508.

Subpart 538.25, Requirements for Foreign Entities, is added to advise contractors to submit commercial price lists in English and to allow for payments in local currency. Subpart 538.42, Contract Administration, is being added to advise the contractor to abide by the terms and conditions of the Industrial Funding Fee (IFF) and Sales Reporting Requirements when entering into “Contractor Partnering Arrangements (CPAs),” and to explain the process and procedures that should be followed when cancelling a contract at the contractor's request. Subpart 538.43, Contract Modifications, is added to provide guidance to the contractor when initiating a modification request to the Government.

There were 36 public comments received in response to the Advanced Notice of Proposed Rulemaking.

The first commenter recommended suggestions in regard to GSAR 552.238-75, Price Reductions (May 2004) clause, the Commercial Sales Practices Format (CSPF) in GSAR 515.408, and figure 515.4, Instructions that accompany the CSPF. First, the commenter indicated that the failure to identify the customer (or category of customers) that formed the basis of award in the Price Reductions clause needs to be corrected.

Response:
Though the rewrite team reviewed this comment as substantive, it was unable to be addressed at this time. The team will confer with the Multiple Award Schedule Advisory Panel for possible recommendations. Second, the commenter indicated that more consistent parameters were needed for the “Commercial Sales Practices” disclosure section. GSAM Part 505 includes a GSAM Form 3617, Record of Authorization of Access to

Proprietary or Source Selection Information, which the GSA contracting community will use to ensure that proprietary data is not released.

The second commenter suggested that GSA be proactive in using GSAM Part 538 to address unresolved issues regarding GSA Schedule contracting. The GSA contractors have requested guidance and consistent policy on matters such as time and material task orders, and the extent to which G&A can be added to travel. Though some of these issues are addressed generally in the FAR, specific questions regarding application to Schedules contracting have remained unanswered, leading to inconsistent applications across the Schedules program.

Response:
The team's analysis of this comment is that it is outside the scope of this part. Currently, the Schedule's acquisition community uses FAR 52.232-7, Payments Under Time and Material, and FAR 31.205-46, Travel Costs, to address time and material task orders. However, specific guidance for contracting officers for time and material task orders is under internal review.

The third commenter suggested that the GSAR should include coverage on Governmentwide Acquisition Contracts (GWACs) contracting and the use of GSA Assisted Service. Presently, the GSAR covers neither of these topics. Such areas of discussion, according to the commenter, should include criteria for establishing GWAC and/or assisted acquisition services, pricing objectives, and standard clauses. The commenter stated that adding GWAC coverage would enable the government to implement the best practices of individual offices across the entire program, afford GSA contractors an opportunity to streamline their internal corporate systems and processes, and result in better service and more cost efficient systems that may ultimately reflect in the Government's prices.

Response:
The Team's analysis of this comment is that it is outside the scope of this part. The team has referred this comment to the GSAM Part 516, Types of Contracts, team.

The fourth commenter suggested that GSA resolve how the requirement to annually update the Central Contractor Registration (CCR) affects the position that small business size status is as of the time the offer is submitted. This problem stems from the number of corporate acquisitions and restructurings that continue to take place in the commercial marketplace. The commenter recommended that GSA rationalize the rules of FAR 42.12, GSAR 542.12 and the commercial item clause at FAR 52.212-4(p).

Response:
The team's analysis concludes that this comment is outside the scope of this part. This is a comment that would have Government-wide application.

The fifth commenter suggested that the GSAR prescribe language to insert into GSA Schedule Price Lists on the topic of Size Status and the CCR. The language would inform agencies that, notwithstanding data in CCR, for purposes of ordering against the Schedule, a contractor is designated as small in size for the entire 5-year period of the Schedule contract. Schedule contractors are required to recertify size status at the time of renewal. Additionally, the commenter suggests that GSAR resolve how the requirement to annually update CCR affects the position that small business size status is currently determined at the time the offer is submitted.

Response:
The team's analysis concluded that guidance at FAR 52.219-28, Post-Award Small Business Program Rerepresentation, appropriately addresses and provides guidance to the acquisition and contractor communities to ensure proper implementation of size considerations at various times during the contract. From time of submittal to award, offerors are required to maintain information in CCR as current and accurate.

The sixth commenter suggested that GSA consider adding a section describing the purpose and objectives of Schedule contracting. Such a section would provide context and focus that could help improve consistency in the myriad of decisions that contracting officers have to make daily. For example, some contracting officers are attempting to compare prices offered by one company to prices of another for similar, but not identical, services and products. This process was found to be highly objectionable.

Response:
The team's analysis concludes that the rewrite of GSAM Part 538 will adequately provide contracting officers consistent guidance and policy.

The seventh commenter suggested that GSA clarify the MAS pricing policy by deleting the term “most favored customer (MFC)” from this section of the GSAR.

Response:
The team does not concur with this comment because the convention of the term “most favored customer” still remains a viable practice across the FSS program.

The eighth commenter suggested that the GSAR more specifically state the circumstances that warrant the Government getting a lower discount than commercial customers.

Response:
The team does not concur with this comment because section 538.1504, Evaluation of commercial pricing practices (formerly 538.270), clearly outlines the criteria for the Government to seek a lower discount than commercial customers.

The ninth commenter suggested that GSAR be revised to reflect that many MAS contracts are no longer awarded as a discount from catalog. This shift has occurred because more services have been introduced into the program.

Response:
The team concurs with this comment and has created a Commercial Sales Practices Format (CSP-2), GSAR 538.1203(c)(42) for “Professional Services” to reflect contracts awarded for services.

The tenth commenter suggested that the GSAR should limit (or give better guidance) as to the number of commercial customers that can be the basis of award.

Response:
The team does not concur with this comment. Current guidance as outlined in section 538.1504 allows the contracting officer the flexibility to analyze numerous factors to establish the customer for the basis of award.

The 11th commenter suggested that GSA eliminate the Price Reductions Clause (552.238-75).

Response:
The team does not concur with this comment. In keeping with the philosophy of the FSS Program, this clause should remain. The team will await the results of the Multiple Award Schedule Advisory Panel's analysis and recommendations and will consider this when assessing the clause's validity within the program.

The 12th commenter suggested that the GSAR should provide specific guidelines on the Schedule renewal process.

Response:
The team concurs with this comment and has added verbiage at GSAR 538.4202, Administration of Evergreen Contracts.

The 13th commenter suggested that exceptions to the Price Reduction Clause be considered for situations where the Government is not negotiating discounts from a commercial price list; also, the commenter suggested that the Government give consideration to using price analysis and price acceptance from a vendor's average selling price.

Response:
The team partially concurs with this comment and has created a CSP-2 Format, GSAR 538.1203(c)(42) for “Professional Services” to reflect contracts awarded for services without a commercial price list. Also, the team will confer with the Multiple Award

Schedule Advisory Panel for possible recommendations in this area.

The 14th commenter recommended providing guidance on establishing relationships with dealers/distributors/ resellers under the FSS Program in terms of tracking customer selections.

Response:
The team does not concur with this comment. The Price Reductions Clause encompasses a mechanism for tracking customers in dealer/distributor/reseller situations. This can be accomplished under “category of customers.” Further, the team will confer with the Multiple Award Schedule Advisory Panel for possible recommendations in this area.

The 15th commenter suggested the addition of guidance on sales volume for vendor consideration under the FSS Program—Contract Award Sales Criteria Clause.

Response:
The team partially concurs with this comment. First, the team revised the Commercial Sales Practices Format (CSP-1) to bring clarity to the “Instructions” section, explaining that the contracting officer has the discretion to change offeror estimated sales to conform with the level of sales expectancy. The business decision will be based upon the contracting officer's analysis of the offeror's submission and a realistic evaluation of expected sales.

The 16th commenter suggested adding guidance on how to handle teaming arrangements.

Response:
The team concurs with this comment and has added guidance on Teaming Arrangements, which will be entitled “Contractor Partnering Arrangements (CPAs),” and the team added guidance on the application of the CPAs to the Federal Supply Schedule Program.

The 17th commenter suggested that FAR 52.212-4(s), Order of Precedence, be revised to resolve any inconsistencies discovered in the solicitation or resulting contract.

Response:
The team reviewed the comment and does not concur. This comment is deemed outside the scope of this part and should be resolved at the FAR level.

The 18th commenter suggested adding the following verbiage to update GSAR 552.238-75, Price Reductions: “The identified customer or category of customers may, but is not required to be, the Offeror's most-favored customer.” The intent here is to clarify the misconception as to whether the tracking customer is required to be the MFC for a particular product or group of products or service.

Response:
The team does not concur with this comment, and feels that the addition of this verbiage would convolute the intent of the current Price Reductions Clause. Moreover, it would diminish the contracting officer's authority to establish a viable price/discount relationship with the offeror.

The 19th commenter recommended that GSAR 552.238-75(a) be revised to be consistent with GSAR 538.272 to make clear that a change in the price/discount relationship between the eligible ordering activity and the tracking customer(s) does not trigger a price reduction under the clause unless that change also “results in a less advantageous relationship” for the Government.

Response:
The team does not concur with this comment and feels that the intent is clearly defined in the current Price Reduction Clause. Additionally, GSAR 538.272 has been proposed for deletion.

The 20th commenter suggested deleting the verbiage “with the same effective date and * * *” from the Price Reductions Clause. The commenter suggested that this language be deleted because it is not feasible or realistic to require the contractor to make a revised price available to the Government with the “same effective date” as for the tracking customer.

Response:
The team reviewed the comment and does not concur. GSAR 552.238-75 delineates as to the time period during which an FSS price reduction is required to be effective. It states that “the contractor shall offer the price reduction to the Government with the same effective date, and for the same time period, as extended to the commercial customer (or category of customers).” Thus, no change is warranted.

The 21st commenter suggested that the GSAR be clarified to require that the parties express the relationship in the basis of award as a specific percentage or ratio, or any other objective measurement.

Response:
The team concurs with this comment and has added new verbiage to GSAR 538.1506-2, Price Negotiation Memorandum, which clarifies the relationship of the parties in terms of a percentage or ratio.

The 22nd commenter stated that GSA sometimes requests commercial sales practices information from manufacturers of GSA resellers regardless of whether the reseller has significant sales to the general public, in an attempt to ascertain whether the reseller's proposed prices are fair and reasonable. Further, the commenter stated that, if the reseller has significant sales, the need for its manufacturer's sales information is negated. In this case, the commenter suggested that such requests for pricing information should be limited to pricing or other than cost and pricing information as provided by the reseller, who already has an existing competitive commercial sales practice. In the event that the reseller does not have significant commercial sales or otherwise lacks relevant pricing information, GSA may request other information from the reseller, such as the reseller's cost basis from the manufacturer, pricing information available under other GSA Schedules, or sales by other resellers of the manufacturer's products. Requiring pricing information from manufacturers is unnecessary and a source of considerable confusion within GSA and industry.

Response:
The team concurs with the commenter's scenarios in regard to resellers as offerors under the Federal Supply Schedule Program. If a reseller has significant sales to the general public for products and/or services being proposed by manufacturers which are represented by the resellers they represent, then they should follow the instructions provided in the CSP-1 with an established catalog price list. For resellers that do not have significant sales to the general public, the manufacturer's data shall be submitted in connection with the offer as documentation to support the contracting officer's determination of price reasonableness.

The 23rd commenter suggests that GSA consider changing the way it administers the updates to the Federal Supply Schedules. Furthermore, the commenter suggests that the process is administratively burdensome for Schedule contractors and GSA contracting officers alike, and can create considerable confusion concerning which set of terms applies to a particular task or delivery order.

Response:
The team empathizes with the commenter; however, the FSS Program is constantly evolving. As new products and services are introduced as well as changes to any terms and conditions, the Government reserves the right to provide state-of-the-art technology to the end user. Therefore, spontaneous “refreshment” of solicitation and/or contract terms and conditions are inevitable and part of the acquisition process.

The 24th commenter focused on section C.32 of the contract and GSAR 552.246-73 (WARRANTY—MULTIPLE AWARD SCHEDULE (Mar 2000) (Alternate I—May 2003)) as outlined in the Schedule 70 Solicitation. The commenter suggested that FAR 52.246-4 and FAR 52.246-6 are redundant with paragraph (a) of FAR 52.212-4.

Response:
The team concurs with the commenter that the aforementioned clauses conflict, and that they should not be used in Schedule acquisitions. Adequate coverage can be found in FAR 52.212-4 (Alternate I).

Second, the commenter suggested that GSAR 552.246-73, which invites contractors to offer their commercial warranties to address post-acceptance remedies, conflicts with the final sentence of paragraph (a) of 52.212-4.

Response:
The team concurs with this comment and believes that Schedule acquisitions should follow the procedures as outlined in FAR Part 12, Commercial Acquisitions, and GSAM Part 512, Acquisition of Commercial Items.

Third, the commenter suggested that FAR 52.232-23 incorporated by reference and GSAR 552.232-23 should be removed because they conflict with FAR 52.212-4(b).

Response:
The team concurs with this comment because commercial acquisitions should use commercial terms and conditions as outlined in FAR Part 12, Commercial Acquisitions, and GSAM Part 512—Acquisition of Commercial Items.

Fourth, this commenter focused on the “Changes Clause” at FAR 52.212-4(c). Paragraph (c) of this clause does not make clear whether changes to the contract may be agreed to by an ordering activity and the contractor for purposes of a particular order.

Response:
The team does not concur with this comment. Subparagraph (c) indicates that all changes to the contract must be made only by written agreement between the parties. Commercial practices should be considered for incorporation into the solicitation/contract in accordance with FAR 12.213. If so indicated by market research that the aforementioned is appropriate for the acquisition of the particular item, an ordering activity may add additional terms and conditions to the order as long as the terms and conditions do not conflict with the base contract, as long as it is not precluded by law or executive order. Therefore, this requirement flows down to the task order level.

The 25th commenter is concerned about excusable delays, more specifically, GSA's change to paragraph (f) of FAR 52.212-4 by substituting the words “ordering activity” for “Government” in the standard FAR version. Although this change is appropriate in other areas of the clause, it is not appropriate to describe force majeure events. Typically, a force majeure clause recognizes that a superseding event could arise from any part of the Government rather than solely from the ordering activity. Further, the commenter stated that the clause might be read to create automatic liability for default of the entire contract for a nonperformance event with a single order.

Response:
After careful review of this comment, the team was unable to clearly ascertain the rationale. It appears that GSA changed the text as mentioned above; however, without supporting documentation, the team could not provide a substantive response. “The standard FAR text of paragraph (f) of 52.212-4 contains the word “Government.” Based on the comment, it appears that GSA deviated from this verbiage and substituted “ordering activity.” The team's interpretation of this comment is that the change was made to accommodate cooperative and recovery purchasing. The rationale is that a force majeure event can only be determined at the order level and would only apply to that order. It does not apply to the entire Schedule contract.

The 26th commenter was concerned about contract invoicing. The commenter suggested that the unlabelled paragraph after (g)(1), but before (g)(2), of GSA's deviation to FAR 52.212-4 addresses electronic funds transfer. FAR 52.232-33 (PAYMENT BY ELECTRONIC FUNDS TRANSFER—CENTRAL CONTRACTOR REGISTRATION (Oct 2003)) should be integrated within this portion of the clause to simplify the contract. The commenter recommended deleting FAR 52.232-33 and changing the relevant section of FAR 52.212-4 to more assertively and clearly incorporate FAR 52.232-33, unless an ordering activity indicates otherwise. Additionally, paragraph (d) of GSAR 552.232-74 (INVOICE PAYMENTS (Sep 1999)) changes the requirement in FAR 52.212-4(g)(1) from having to provide three copies of the invoice to having to provide only one original invoice.

Response:
The team concurs with the comment and agrees that FAR 52.232-33 should not be included in MAS solicitations because FAR 52.212-4 contains the appropriate invoicing information. The issue of the number of copies of invoices required is outside the scope of this part.

The 27th commenter was concerned about risk of loss. The commenter recommends that GSA consider whether the various delivery and packaging requirements can be simplified to clearly require delivery and packaging that comports with the contractor's standard commercial practices.

Response:
The team concurs that the delivery requirements should be simplified. As such, the team determined that GSAR 552.211-75 and GSAR 552.211-77 are not applicable under the MAS. However, the team believes that the MAS should include GSAR 552.211-78, which was deleted from GSAM Part 511 and added to this part.

The 28th commenter stated that FAR clauses 52.229-1 (State and Local Taxes (Apr 1984) (Deviation—May 2003)), 52.229-3 (Federal, State, and Local Taxes (Apr 2003) (Deviation—May 2003)), 52.229-5 (Taxes—Contracts Performed in U.S. Possessions or Puerto Rico (Apr 1984)), and 52.229-71 (Federal Excise Tax—DC Government (Sep 1999)) appear to be in conflict.

Response:
The team, believes, however that a careful reading of the language makes clear GSA's apparent intent to exclude all applicable Federal, State, and local taxes and duties, except after imposed or relieved Federal taxes. Additionally, FAR 52.229-71, which is incorporated into the contract in section C.2 of the contract, is not reflected in current regulations. The team concurs that FAR 52.212-4(k) should not be modified. However, FAR 52.212-5 still remains a viable clause in the FSS program. Additionally, FAR 52.229-71 was cited incorrectly and should be noted as GSAR 552.229-71 (Federal Excise Tax—DC Government). This clause will remain as an incorporated by reference clause under GSAR 552.212-71.

The 29th commenter suggested that GSA establish a central location for all contract clauses that it includes in FSS and GWAC contracts. The commenter's concern is that there is no single publication, Web site, or other resource where all of the different types of contract clauses can be reviewed. Publishing all of them in a central location, according to the commenter, will make the contract formation process more transparent and administratively less burdensome.

Response:
The team concurs with this comment. The GSA's rewrite of the GSAM will accomplish this feat by relocating all of the FSS's clauses and provisions from its current clause manual to GSAM Part 538. This is inclusive of other FSS clauses and provisions that are currently found in other GSAM parts. Consequently, this will bring consistency to the program, providing a one-stop approach to FSS policy and guidance.

The 30th commenter suggested revisions to the GSAR to make it more consistent with the FAR and to eliminate inconsistencies and redundancies between the FAR and GSAR. Specifically, the commenter

focused on FAR clauses 52.246-4 (Inspection of Services—Fixed Price (Aug 1996) (Deviation—May 2003)) and 52.246-6 (Inspection-Time and Material and Labor-Hour (May 2001) (Deviation—May 2003)) as well as GSAR clause 552.246-73 (Warranty—Multiple Award Schedule (Mar 2000) (Alternate I—May 2003)). The commenter noted that the aforementioned clauses conflict and are redundant with paragraph (a) of FAR 52.212-4. Moreover, GSAR 552.246-73, which invites contractors to offer their commercial warranties to address post-acceptance remedies, according to the commenter, conflicts with the final sentence of paragraph (a) of FAR 52.212-4. The commenter suggested that the clauses be reconciled or deleted to the extent that they are redundant. As such, paragraph (a) could be limited in application to products under particular Special Identification Numbers (SINs)—as opposed to services—to easily alleviate the patent conflict between the FAR clauses as to the inspection and acceptance of services. Also, the final sentence of paragraph (a) should be changed to reference the post acceptance rights contemplated under the contractor's commercial warranty pursuant to GSAR 552.246-73. A suggested change might read as follows: “The ordering activity must exercise any post acceptance rights pursuant to contractor's commercial warranty incorporated into this contract under C.32. If no such commercial warranty is incorporated, then the ordering activity must exercise its post acceptance rights (1) within a reasonable time after the defect was discovered or should have been discovered; and (2) before any substantial change occurs in the condition of the item, unless the change is due to the defect in the item.” Alternatively, the commenter believes that the final sentence of paragraph (a) should be deleted altogether as the post acceptance rights to which it refers are unclear.

Response:
The team partially concurs with this comment. An attempt to revise paragraph (a) of FAR 52.212-4 would require a FAR Case and consensus from the Department of Defense (DoD) and Civilian agencies. This is outside the scope of this part. However, GSAR 552.246-73 is sufficient in supplementing the FAR because it provides policy regarding placement of the burden of defective items on the contractor for a specific timeframe (90 days) as opposed to FAR 52.212-4(a) which states “within a reasonable time.” This is inclusive of transportation to and from site as well as onsite repair.

The 31st commenter raised a concern about GSAR 552.232-23 (Assignment of Claims (Sep 1999)) conflicting with and supplementing paragraph (b) of FAR 52.232-23. The GSAR at 552.232-23 incorporates FAR 52.232-23, but whereas FAR 52.232-23 permits assignment of any amount under the contract to a bank, trust company or financial institution, GSAR 552.232-23 changes the first paragraph of FAR 52.232-23 to permit assignment of amounts due under any order of $1000 or more. Although the GSAR clause refers to the indefinite delivery/indefinite quantity nature of the GSA Schedule Contract as a rationale, it is unclear if the $1000 limitation remains relevant today; the vast majority of orders are well above $1000. The change in nomenclature between the contract and order is appropriate and provides the parties more flexibility than a reference to the entire GSA Schedule Contract might. The recommendation here is that section C.21 of the contract should be deleted and paragraph (b) of FAR 52.232-23 should be changed to conform to the order concept. The GSAR clause 552.232-23, including the $1000 limitation, should be eliminated. Thus, FAR paragraph 52.232-23(b) might read: “The Contractor or its assignee may assign its rights to receive payment due as a result of performance of this contract,
or any order hereunder,
to a bank, trust company, or other financing institution, including any Federal lending agency in accordance with the Assignment of Claims Act (31 U.S.C. 3727).'' Nevertheless, when a third party makes payment (
e.g.
, use of a credit card), the contractor may not assign its rights to receive payment under this contract.

Response:
The team does not concur with this comment. The $1000 limitation would not apply to most orders, but still remains relevant when purchasing office supplies under the program. Further, the recommendation that section C.21 of the contract should be deleted and that paragraph (b) of FAR 52.232-23 be changed to conform to the order concept is outside the scope of this part. This would require a collaborative decision between DoD and GSA at the FAR level.

The 32nd commenter noted that, on the topic of Termination for the Ordering Activity's Convenience, the clause is ambiguous due to the use of the word “hereof.” The commenter is concerned that it could be read to suggest that the ordering activity has the ability to terminate the underlying GSA Schedule contract, rather than merely the order. Thus, the commenter's recommendation is that the first sentence should be clarified, consistent with GSA's intent, to refer to an “order” rather than the GSA Schedule Contract, by changing the terms “hereof” to “thereof” and “hereunder” to “thereunder.”

Response:
The team partially concurs with this comment. Though the change in verbiage would adequately distinguish “contract” from “order,” this change is outside the scope of this part. It would require a collaborative decision between DoD and GSA at the FAR level.

The 33rd commenter focused on FAR 52.212-4(m) addressing the topic of Termination for cause, particularly GSAR clause section C.34 contract Default (I-FSS-249-B) (May 2000). The commenter is concerned that the use of the word “hereof” in this clause is somewhat ambiguous with regard to the ordering activity's ability to terminate the underlying GSA Schedule Contract, rather than merely the order. The commenter's suggestion is that the first sentence should be clarified so as to be consistent with GSA's intent by referring to an “order” rather than the GSA Schedule Contract and by changing the word “hereof” to “thereof.”

Response:
The team partially concurs with this comment. Though the change in verbiage would adequately distinguish “contract” from “order,” this change is outside the scope of this part. It would require a collaborative decision between DoD and GSA at the FAR level.

The 34th commenter focused on FAR 52.212-4(p) addressing Limitation of Liability. Of particular note was GSA's deviation to paragraph (p) which does not permit an exclusion of consequential damages for implied warranty claims. As the commenter notes, the FAR version of this clause does not include the language “or implied warranty” in the first sentence of the clause, thereby excluding consequential damages from implied warranty claims.

Further, the commenter believes that there does not seem to be any reason for GSA's different approach, particularly because most companies exclude all implied warranties in their commercial warranty provisions—exclusions that GSA presumably accepts under GSAR 552.246-73, which, as explained above, invited the contractor to provide its commercial warranty. The commenter's recommendation is that the clause should at least revert to the standard paragraph (p) at FAR 52.212-4—GSA's deviation does not make sense in the context of GSAR 552.246-73. Moreover,

as suggested previously by the section, the limitation of the exclusion of consequential damages to only defects or deficiencies in accepted items provides a gap in coverage for unaccepted items, which is inconsistent with commercial practice and prior versions of the clause.

Response:
The team proposes maintaining clauses at FAR 52.212-4(p) and GSAR 552.246-73; they include the standard commercial warranty. A deviation is not necessary.

The 35th commenter seeks clarification of the application of the Buy American Act (BAA) and the Trade Agreements Act (TAA). The commenter is concerned that contractors receive consistent treatment under the law and applicable regulations. Knowing when the BAA and TAA apply and how their respective tests will be applied to products or services is of great importance to contractors. Contractors selling commercial items to the Federal Government generally do not manufacture their products based on the origin of supplies or manufacturing location. The Government, however, requires such contractors to consider these things when they contract to sell commercial products to the Federal Government. Making it easier for contractors to know and understand how the rules will be applied can only improve the procurement system. This is particularly important because an inaccurate certification can result in loss of monies, contracts, serious civil and criminal penalties, or both. The commenter feels that there is uncertainty as to whether the BAA or TAA applies to a procurement. The TAA dollar-value applicability threshold, which is set out in FAR 25.402, can vary according to whether the country of origin is a Free Trade Agreement (FTA) country and whether the contract is for supplies, services, or construction. Generally, the BAA applies to contracts below the applicable TAA threshold, and the TAA waives application of the BAA to contracts at or above the applicable TAA threshold. But it is unclear whether the TAA threshold applies to the total contract value, the individual Contract Line Item value, or the delivery or task order value. FAR 25.402(b) and 25.403(b) identify the TAA and FTA thresholds and how they ought to apply to specific types of contracts, but it is the commenter's understanding that contracting officers routinely (and perhaps not reasonably) interpret these provisions differently. Is it GSA's belief that the TAA applies to each order regardless of order amount and what is the reason for this belief?

Response:
The team agrees that the TAA and BAA apply to the total value of the contract, regardless of individual order value. Specifically, as identified in FAR 25.403(b)(3), if, in any 12-month period, recurring or multiple awards for the same type of product or products are anticipated, the contracting officer is to use the total estimated value of these projected awards to determine whether the World Trade Organization (WTO), Government Procurement Agreement (GPA) or an FTA applies. Acquisitions should not be divided with the intent of reducing the estimated value of the acquisition below the dollar threshold of the WTO, GPA or an FTA.

The 36th commenter was concerned about Alternate I of GSAR clause 552.232-77 (Payment by Governmentwide Commercial Purchase Card), and GSAR clause 552.232-79 (Payment by Credit Card) and their impact on small businesses. The commenter states that, with the exception of FSS Schedule 70 (Information Technology) contracts, GSAR 532.7003 requires contracting officers to insert Alternate I of the clause at GSAR 552.232-77 in FSS schedule solicitations and contracts. Moreover, for FSS Schedule 70 solicitations and contracts, GSAR 532.7003 requires contracting officers to include clause 552.232-79. The GSAR clause at 552.232-77, without Alternate I, permits government orders using the Governmentwide commercial purchase card if agreeable to the contractor. Alternate I of that clause, however, provides that the FSS contractor
must
accept the Governmentwide commercial purchase card for payments equal to or less than the micro-purchase threshold ($2500). Likewise, clause 552.232-79 provides that Schedule 70 contractors
must
accept credit card orders (including the Governmentwide commercial purchase card) for payments equal to or less than the micro-purchase threshold. Consequently, the commenter felt that this mandate may be problematic for some companies. Through reports, it was outlined that credit card companies do not permit companies participating in their programs to discriminate by accepting their cards from some customers and not others. Consequently, the requirement contained in Alternate I of GSAR 552.232-77 and in GSAR 552.232-79 for contractors to accept Government payment by the Governmentwide commercial purchase card may have the effect of compelling these contractors to accept credit card payments from all commercial customers as well. Therefore, the commenter recommends that GSA examine the current requirement in Alternate I of the clause to determine its impact and the burden it poses for contractors and potential contractors, especially small businesses that have chosen not to accept payment by credit card from their commercial customers in order to avoid the fees charged by the credit card companies.

Response:
The team does not concur with this comment. Under GSAR Clause 552.232-77, Alternate I, GSA mandates that the Contractor must accept use of the Governmentwide commercial credit card for payments equal to or less than the micro-purchase threshold as part of the FSS program. This mandate leverages the streamlined and more efficient transaction process use of the credit card. Offerors should consider this mandate before submitting an offer under the FSS program. The clause has been a final rule since March 2, 2000, and does not seem to have adversely impacted the number of small businesses under the FSS Program, as nearly 80 percent of FSS contractors are small business. According to the GSA purchase card Web site, the Government saves on administrative processing costs by using the purchase card rather than traditional purchase orders. Further, use of the purchase card ensures timely payment to merchants who do business with the Federal Government. Merchants are paid for credit card transactions within 48 hours of submitting the transaction to the card network. This is a vast improvement to the lengthy invoicing and payment process without cards and improves cash flow to merchants most in need, especially small businesses. However, the team is currently coordinating with the GSA Purchase Card office to track any issues and/or concerns that may have arisen based on current requirements.

This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

The changes may have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
et seq.
, because the proposed rule will implement a number of provisions and clauses that are the same provisions and clauses currently in use in FSS solicitations and contracts. However, the provisions and clauses have never been vetted to the

public for comment, and must be approved by the Office of Management and Budget under the Paperwork Reduction Act.

An Initial Regulatory Flexibility Analysis (IRFA) has been prepared. The analysis is summarized as follows:

This Initial Regulatory Flexibility Analysis has been prepared consistent with the criteria of 5 U.S.C. 604.

1. Description of the reasons why action by the agency is being considered.

GSAM coverage in Part 538 does not currently include internal policy and guidance issued in other forms such as Acquisition Letters, Procurement Information Bulletins (PIBs), Procurement Information Notices (PINs), Instructional Letters and the Supply Operations Handbook (FAS P 2901.2A). This internal FSS guidance has never been fully vetted to the regulatory level for analysis, thereby bringing about conflict and overlap within the Program. Therefore, under conventions of the General Services Administration's (GSA) rewrite of the General Services Administration Manual (GSAM), the rule proposes to implement this policy and guidance for the Federal Supply Schedule (FSS) Program.

2. Succinct statement of the objectives of, and legal basis for, the proposed rule.

The objective of the proposed rule is to implement policy and guidance currently used in Federal Supply Schedule solicitations and contracts. Essentially, the goal of the new rule is to make the process more efficient by reducing duplication of effort and to ensure currency and consistency within the program for the acquisition of supplies and services.

3. Description of, and where feasible, estimate of the number of small entities to which the proposed rule will apply.

The proposed rule will affect large and small businesses, which are awarded GSA FSS contracts. The Program contains over 17,000 long-term governmentwide contracts with commercial firms that provide over 11 million supplies and services. Approximately eighty-one percent (13,770) of GSA FSS contracts are small businesses. Over $13 billion (37 percent) of sales under the Program in FY07 went to small businesses, which is well above the 23 percent governmentwide goal. There are a total of 39 Schedules, with 17 possessing an array of Special Item Numbers (SINs) set-aside for small businesses. Overall, small businesses have benefited from GSA providing education and access to the Federal marketplace via the Pre-award phase (Pathway to Success), the Post-award phase (New Contractor Orientation), and Contractor Assistance Visits (CAVs). Additionally, this proposed rule contains changes such as the addition of a Commercial Sales Practices Format for Supplies/Services without an Established Catalog Price, which will assist in facilitating ease-of-use in the preparation of offers from prospective Contractors, inclusive of small business concerns. FSS contracts are negotiated as volume purchase agreements, with generally very favorable pricing. The ability of small businesses to be awarded under the FSS Program has enabled them to grow in the Federal marketplace as well as realize significant cost savings.

4. Description of projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record.

This rule will not pose a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
et seq.
, because the proposed rule will implement a number of provisions/clauses that are the same provisions/clauses currently in use in FSS solicitations and contracts. However, the provisions/clauses have never been vetted to the public for comment, and must be approved by the Office of Management and Budget under the Paperwork Reduction Act.

5. Identification, to the extent practicable, of all relevant Federal rules that may duplicate, overlap or conflict with the proposed rule.

The proposed rule when finalized does not duplicate, overlap, or conflict with any other Federal rules.

6. Description of any significant alternatives to the proposed rule that accomplish the stated objectives of applicable statutes and that minimize any significant economic impact of the proposed rule on small entities.

There are no practical alternatives that will accomplish the objective of this rule.

The Regulatory Secretariat has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat. The GSA will consider comments from small entities concerning the affected GSAR part 538 in accordance with 5 U.S.C. 610. Comments must be submitted separately and should cite 5 U.S.C 601,
et seq.
(GSAR Case 2006-G507), in correspondence.

C. Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.
) addresses the collection of information by the Federal government from individuals, small businesses and state and local governments and seeks to minimize the burdens such information collection requirements might impose. A collection of information includes providing answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on ten or more persons, other than agencies, instrumentalities, or employees of the United States. In accordance with the requirements of the Paperwork Reduction Act, agencies may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number.

The Paperwork Reduction Act does apply; however, these changes to the GSAR do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Numbers 3090-0243 (GSAR 552.216-70), 3090-0250 (GSAR 552.238-70 and 552.238-74), 3090-0262 (GSAR 552.238-72), 3090-0121 (GSAR 552.238-75), and 3090-0204 (GSAR 552.211-78).

However, GSA is requesting comments on a proposed information collection. The proposed information collection is representative of required process of Federal Supply Schedule (FSS) solicitations in order to negotiate and award contracts. Offerors submit solicitations either by hard copy or electronically through GSA's eOffer system at
http://www.gsa.gov/eoffer
.

The Regulatory Secretariat will submit a request for approval of a new information collection requirement concerning Federal Supply Schedule Contracting to the Office of Management and Budget under 44 U.S.C. 3501,
et seq.

Annual Reporting Burden

552.238-10—Additional Offer Submission Instructions (Federal Supply Schedules) (SCP-FSS-001), 552.238-11—Additional Evaluation Factors for Award of Services (CI-FSS-151), and 552.238-90—Dealers and Suppliers (I-FSS-644). The burden for the three clauses is combined, thereby constituting a total of 8 burden hours collectively. FSS Offerors are at liberty to submit offers for both supplies and services, which may be inclusive of acting as a Dealer/Reseller.

Number of Respondents: 4,000.

Responses per Respondent: 1.

Annual Responses: 4,000.

Average Burden per Response: 8.

Total Burden Hours: 32,000.

Public reporting burden for this collection of information is estimated to average 8 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

552.238-65—Commercial Sales Practices Format—Supplies and/or Services with an Established Catalog Price (CSP-1) and 552.238-66—Commercial Sales Practices Format—Supplies and/or Services with Market Pricing Without an Established Catalog Price (CSP-2).

Number of Respondents: 18,000.

Responses per Respondent: 3.5.

Annual Responses: 63,000.

Average Burden per Response: 5.

Total Burden Hours: 315,000.

Public reporting burden for this collection of information is estimated to average 5 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

552.238-71—Submission and Distribution of Authorized FSS Schedule Price Lists, 552.238-15—Contract Price Lists (I-FSS-600), 552.238-61—Price Lists/Brochures for Non-Commercial Items (I-FSS-602), and 552.238-92—Dissemination of Information by Contractor (I-FSS-680).

Number of Respondents: 18,000.

Responses per Respondent: 3.5.

Annual Responses: 63,000.

Average Burden per Response: 5.

Total Burden Hours: 315,000.

Public reporting burden for this collection of information is estimated to average 5 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

552.238-58—GSA
Advantage!
® (I-FSS-597) and 552.238-59—Electronic Commerce-FACNET (I-FSS-599).

Number of Respondents: 16,634.

Responses per Respondent: 3.5.

Annual Responses: 58,219.

Average Burden per Response: 2.

Total Burden Hours: 116,438.

Public reporting burden for this collection of information is estimated to average 2 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

552.238-69, Economic Price Adjustment—Supplies and/or Services with Market Prices without an Established Catalog Price (I-FSS-969).

Number of Respondents: 11,000.

Responses per Respondent: 1.

Annual Responses: 11,000.

Average Burden per Response: 1.

Total Burden Hours: 11,000.

Public reporting burden for this collection of information is estimated to average 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

D. Request for Comments Regarding Paperwork Burden

Submit comments, including suggestions for reducing this burden, not later than March 27, 2009 to: GSA Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, Regulatory Secretariat (VPR), 1800 F Street, NW., Room 4041, Washington, DC 20405.

Public comments are particularly invited on:
Whether this collection of information is necessary for the proper performance of functions of the GSAR, and will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.

Requester may obtain a copy of the justification from the General Services Administration, Regulatory Secretariat (VPR), Room 4041, Washington, DC 20405, telephone (202) 208-7312. Please cite OMB Control Number 3090-XXXX, GSAR 2006-G507, Federal Supply Schedule Contracting, in all correspondence.

List of Subjects in 48 CFR Parts 538 and 552

Government procurement.

Dated: January 6, 2009.
Al Matera,
Director, Office of Acquisition Policy.

Therefore, GSA proposes to amend 48 CFR parts 538 and 552 as set forth below:

1. The authority citation for 48 CFR parts 538 and 552 continues to read as follows:

Authority:

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

PART 538—FEDERAL SUPPLY SCHEDULE CONTRACTING

Subpart 538.2 [Removed]

2. Remove Subpart 538.2, consisting of sections 538.270 through 538.273.

3. Add Subpart 538.9, consisting of section 538.906-3, to read as follows:

Subpart 538.9—Contractor Qualifications

Sec.
538.906-3
Roles and Responsibilities of a contractor partnering arrangement.

538.906-3
Roles and responsibilities of a contractor partnering arrangement.
(a) The Contractor Partnering Arrangement document should outline all FSS partners. The lead partner is responsible for identifying FSS contract numbers, Contractor's point-of-contact information, and information about what each partner is responsible for at each phase of the project. Each partner is responsible for the terms and conditions of its respective FSS contract, including any proposed unit prices or hourly rates.

(b) The CPA is solely between or among the partners and cannot conflict with the underlying terms and conditions of each partner member's Schedule contract.

(c) Schedule Contractors are responsible for crafting the CPA document. The Government is not involved in this process.

(d) The CPA document should acknowledge that any dispute involving the distribution of payment between the lead partner and the team members will be resolved by all partners, without any involvement by the Government.

4. Add Subpart 538.12, consisting of section 538.1203, to read as follows:

Subpart 538.12—Acquisition of Commercial Items—FSS

Sec.
538.1203
Solicitation provisions and contract clauses.

538.1203
Solicitation provisions and contract clauses.

(a)
Multiple and single award schedules.
The following provisions are required for all Federal Supply Schedules. As prescribed below, insert the following Cover Page language prior to the beginning of FSS solicitations:

(1) 552.238-1, Cover Page for Worldwide Multiple Award Schedules (CP-FSS-1-C). This provision is for both supply and service solicitations. For supplies, complete the information required by this paragraph (a) and delete paragraph (b) of this section in its entirety. For services, complete the information required by paragraph (b) and delete (a) in its entirety. For solicitations containing both supplies and services, complete paragraphs (a) and (b).

(2) 552.238-2, Significant Changes (CP-FSS-2). This provision outlines to Offerors the most recent solicitation revisions since its previous posting to the Government's point of entry.

(3) 552.238-3, Pricing (CP-FSS-19). This provision notifies Offerors that separate pricing may be submitted for different countries, if offered commercially.

(4) 552.238-4, Notice of Total Small Business Set-Aside (A-FSS-31). This provision notifies small business

Offerors which Special Item Numbers (SINs) are set-aside.

(5) 552.238-5, Information Collection Requirements and Hours of Operation (A-FSS-41). This provision informs Offerors that only required regulations are contained in the solicitation and the hours of operation.

(6) 552.238-6, Notice: Requests for Explanation or Information (CP-FSS-3). This provision contains the contact information to address questions regarding the solicitation.

(b)
Multiple and single award Schedules.
As prescribed below, insert the following provisions as an addendum to 52.212-1, Instructions to Offerors—Commercial Items, in solicitations issued under FSS, when applicable:

(1) 552.238-7, Estimated Sales (B-FSS-96). This provision instructs Offerors to provide the estimated annual sales anticipated under the Schedule.

(2) 552.238-8, Consideration of Offers Under Standing Solicitation (A-FSS-11). This provision outlines to Offerors the Government's contemplation of awards under a standing solicitation.

(3) 552.238-9, Period for Acceptance of Offers (A-FSS-12-C). This provision instructs the Offeror to insert the number of days that the offered pricing is firm.

(4) 552.238-10, Additional Offer Submission Instructions (Federal Supply Schedules) (SCP-FSS-001). This provision clarifies how to submit solicitation responses.

(5) 552.238-11, Additional Evaluation Factors for Award of Services (I-FSS-151). This provision provides clarification to Offerors on how solicitation responses for services will be evaluated.

(6) 552.238-12, Submission of Offers—Additional Instructions (CI-FSS-002). This provision outlines to Offerors additional instructions on how to submit an offer under the Schedules Program.

(7) 552.238-13, Impact of Mandatory Use on Quantities Ordered (B-FSS-97). In conjunction with clause 552.238-51, Scope of Contract (I-FSS-102), this provision requires that this contract is the first instance where GSA is the only agency listed as a mandatory user. This provision does not apply to the Department of Veterans Affairs.

(8) 552.238-14, Introduction of New Supplies/Services (INSS) (L-FSS-400). This provision is for use when establishing new services or supplies.

(9) 552.238-15, Contract Price Lists (I-FSS-600). This provision provides instructions to Offerors on how to create the Authorized FSS Schedule Price List. For Schedule 70, use Alternate I.

(10) 552.238-16, Ordering Information (Federal Supply Schedules). This provision outlines how Offerors will accept orders placed against the contract.

(11) 552.238-17, Contractor's Remittance (Payment) Address. This provision instructs the Offeror on how to insert its remittance/payment address.

(12) 552.238-18, Final Proposal Revision (L-FSS-101). This provision provides instructions to Offerors on how to prepare and submit a Final Proposal Revision (FPR) letter.

(13) 552.238-19, Use of Non-Government Employees to Review Offers. This provision provides notification to Offerors that non-government employees may be utilized to review their solicitation response.

(14) 552.238-20, Authorized Negotiators (K-FSS-1). This provision provides for the Offeror to outline its point-of-contact information for negotiations.

(c)
Multiple and single award schedules.
As prescribed below, insert the following clauses as an addendum to clause 52.212-4, Contract Terms and Conditions—Commercial Items, in solicitations and contracts issued under FSS, when applicable:

(1) 552.238-21, Authentication Supplies and Services (CI-FSS-52). This clause is to be used with Schedule 70 only and specifically corresponds to those Special Item Numbers (SINs) associated with the Homeland Security Presidential Directive-12 (HSPD-12).

(2) 552.238-22, Indemnification and Liability (CI-FSS-053). This clause is to be used to protect the interest of the Government for loss or damage or anticipated loss for services related to hazardous substances or waste.

(3) 552.238-23, Organizational Conflicts of Interest (CI-FSS-054). This clause is to be used when the nature of the work to be performed under a proposed ordering activity contract may either

(i) Result in an unfair competitive advantage to the Contractor or its affiliates; or

(ii) Impair the Contractor or its affiliates' objectively in performing contract work.

(4) 552.238-24, Section 508 Compliance (CI-FSS-056). This clause instructs the Contractor to insert its Web site in a location where ordering activities can verify the 508 compliance for specific items.

(5) 552.238-25, Characteristics of Electric Current (C-FSS-412). This clause is used for overseas orders when Contractors are supplying equipment which uses electrical current.

(6) 552.238-26, Separate Charge for Performance Oriented Packaging (POP) (D-FSS-447). This clause is to be used when the Offeror is requested to quote a separate charge for preservation, packaging, packing and marking and labeling of domestic and overseas HAZMAT SURFACE SHIPMENTS.

(7) 552.238-27, Special Packing (D-FSS-464). This clause instructs bidders to specify additional charges for preservation, packaging, and packing when other than the commercial standard is used.

(8) 552.238-28, Export Packing (D-FSS-465). This clause instructs Offerors to quote in their price lists accompanying their offer (or by separate attachment), additional charges or net prices covering delivery of the items furnished with commercial and/or Government export packing. This clause only applies to Schedule 70 for Information Technology.

(9) 552.238-29, Marking and Documentation Requirements Per Shipment (D-FSS-471). This clause is used when outlining the minimum information and documentation required for shipment.

(10) 552.238-30, Inspection (E-FSS-521-D). This clause is for use when all items are to be inspected at a destination by a Government representative.

(11) 552.238-31, Emergency/Expedited Delivery (CI-FSS-051). This applies to Schedule 51 V only, and is to be used when delivery terms and conditions deviate from normal delivery practices.

(12) 552.238-32, Delivery Prices (F-FSS-202-G). This clause is for use in Indefinite Delivery/Indefinite Quantity contracts and describes delivery terms and conditions for the 48 Contiguous States and Washington, DC as well as additional destinations.

(13) 552.238-33, Additional Service Charge for Delivery Within Consignee's Premises (F-FSS-244-B). This clause is for use when the Contractor charges a separate cost for each shipping container to be shipped (inclusive of items that are comparable in size and weight).

(14) 552.238-34, Additional Service Charge for Delivery Within Consignee's Premises (Specification for Inside Delivery) (F-FSS-244-C). This clause is applicable to furniture acquisitions only and is to be used in accordance with FAR 52.247-35 when an additional charge is necessary beyond F.O.B Destination within Consignee's Premises.

(15) 552.238-35, Shipping Points (F-FSS-712-B). This clause instructs the Offeror to provide shipping information,

inclusive of carrier and address, for F.O.B. Origin shipments.

(16) 552.238-36, Contact for Contract Administration (G-FSS-900-C). This clause instructs Offerors to provide points of contact for domestic and/or overseas contact information for contract administration.

(17) 552.238-37, Vendor Managed Inventory (VMI) Program (MAS) (G-FSS-906). This clause instructs Contractors to monitor and maintain specified inventory levels for selected supplies at designated stocking points.

(18) 552.238-38, Order Acknowledgement (G-FSS-907). This clause is only applicable to orders which state “Order Acknowledgement Required” and advises the Contractor of the receipt process within 10 days of delivery.

(19) 552.238-39, Urgent Requirements (I-FSS-140B). This clause is for use when a bona fide need exists for accelerated delivery.

(20) 552.238-40, Post-Award Samples (H-FSS-505). This clause is for use with carpet acquisitions only and is used to instruct the Contractor on submission requirements.

(21) 552.238-41, Guaranteed Minimum (I-FSS-106). This clause outlines the minimum guarantee that the Government agrees to order during the term of the contract.

(22) 552.238-42, Restriction on the Acceptance of Orders (I-FSS-107). This clause sets restrictions on orders and deliveries in connection with the United States Navy and the Military Sealift Command.

(23) 552.238-43, Clauses for Overseas Coverage (I-FSS-108). The following clauses must be inserted, when applicable, in solicitations in full text for overseas acquisitions:

(i) 52.214-34, Submission of Offers in the English Language.

(ii) 52.214-35, Submission of Offers in U.S. Currency.

(iii) 52.247-34, F.O.B. Destination.

(iv) 52.247-38, F.O.B. Inland Carrier, Country of Exportation.

(v) 52.247-39, F.O.B. Inland Point, Country of Importation.

(vi) 552.238-25, Characteristics of Electric Current (C-FSS-412).

(vii) 552.238-29, Marking and Documentation Requirements Per Shipment (D-FSS-471).

(viii) 552.238-44, Transshipments (D-FSS-477). This clause is for use for transshipments and states the terms and conditions of the use of Department of Defense forms necessary for shipment.

(ix) 552.238-45, Delivery Prices (F-FSS-202-F). This clause is for use for F.O.B. Destination in overseas deliveries.

(x) 552.238-46, Foreign Taxes and Duties (I-FSS-314). This clause delineates which fees, taxes and other foreign governmental costs are exempt/non-exempt by the U.S. Government. The prices offered must be NET delivered F.O.B.

(xi) 552.238-47, Parts and Service (I-FSS-594). This clause is used to ensure that the parts and services (including the performance of warranty or guarantee service) submitted by Offerors (dealers/distributors) is good for the entire contract period.

(24) 552.238-48, English Language and U.S. Dollar Requirements (I-FSS-109). This clause is used to instruct Contractors that all documents shall be produced in the English language, including, but not limited to, price lists and catalogs.

(25) 552.238-49, Geographic Area Address of Supply and Service Point. This clause outlines the intent for available means to maintain Government-owned items in satisfactory condition.

(26) 552.238-50, Option to Extend the Term of the Contract (Evergreen) (I-FSS-163). This clause is for use when determining continued performance of a contract for the next option period.

(27) 552.238-51, Scope of Contract (I-FSS-102). This clause is for use with single awards only and is used to outline the scope of delivery.

(28) 552.238-52, Option to Extend the Term of Contract for Period of One Year (I-FSS-165). This clause is for use when determining continued performance of a contract for an additional 12 months, inclusive of the same terms and conditions as contained in the original contract.

(29) 552.238-53, Option to Extend the Term of the Contract (I-FSS-167). This clause is for single awards only and is used when determining continued performance of a contract not to exceed 60 days.

(30) 552.238-54, Federal Excise Tax (I-FSS-311). This clause is for use with tire and tube acquisitions only and instructs ordering activities on the procedures for invoicing the Federal Excise Tax.

(31) 552.238-55, Contractor Partnering Arrangements (CPAs) (I-FSS-40). This clause instructs Contractors to abide by the terms and conditions of their respective contracts when participating in Contractor Partnering Arrangements. This clause is not applicable to the U.S. Department of Veterans Affairs.

(32) 552.238-56, Performance Reporting Requirements (I-FSS-50). This clause outlines to the Contractor the performance requirements for contracts exceeding the simplified acquisition threshold.

(33) 552.238-57, Guarantee (I-FSS-546). This clause outlines the guarantee afforded to the Government for a period of one year from the date of delivery.

(34) 552.238-58, GSA
Advantage
!® (I-FSS-597). This clause outlines to the Contractor that it must participate in the GSA
Advantage
!® online shopping service. This clause is not applicable to the U.S. Department of Veterans Affairs.

(35) 552.238-59, Electronic Commerce-FACNET (I-FSS-599). This clause outlines the use of electronic commerce/data interchange to conduct contract processes and procedures. This clause is not applicable to the U.S. Department of Veterans Affairs.

(36) 552.238-60, Performance Incentives (I-FSS-60). This clause outlines performance incentives agreed upon between the ordering activity and the Contractor.

(37) 552.238-61, Price Lists/Brochures for Non-Commercial Items (I-FSS-602). This clause outlines the requirements for submission of price lists for non-commercial items.

(38) 552.238-62, Office Copier Utilization Guidelines (I-FSS-624). This clause explains to ordering activities the guidelines for selecting the appropriate and most economical copying process.

(39) 552.238-63, Preference for Small Business Concerns (I-FSS-90). This clause advises Offerors to prioritize the small business concerns where two or more items at the same delivered price will meet the ordering activity's needs.

(40) 552.238-64, Imprest Funds (Petty Cash) (I-FSS-918). This clause outlines to the Contractor that it agrees to accept cash payment for purchases under the terms of the contract in accordance with FAR 13.305.

(41) 552.238-65, Commercial Sales Practices Format-Supplies and/or Services with an Established Catalog Price List (CSP-1). This clause provides instructions to the Offeror for completing the commercial sales practices format for supplies and services with an established catalog price list.

(42) 552.238-66, Commercial Sales Practices Format-Supplies and/or Services with Market Pricing without an Established Catalog Price (CSP-2). This clause provides instructions to the Offeror for completing the commercial sales practices format for supplies and/or services with market pricing without an established catalog price.

(43) 552.238-67, Modifications (Multiple Award Schedule) (currently 552.243-72). This clause instructs to the Contractor as to the types of contract

modifications and the procedures for requesting them.

(44) 552.238-68, Economic Price Adjustment-Supplies and/or Services with an Established Catalog Price List (currently 552.216-70). This clause provides Contractors the procedures for submitting economic price adjustments for supplies and services with an established catalog price list.

(45) 552.238-69, Economic Price Adjustment-Supplies and/or Services with Market Pricing without an Established Catalog Price (I-FSS-969). This clause provides the Contractor the procedures for submitting economic price adjustments for supplies and services with market pricing and without an established catalog price list.

(46) 552.238-70, Identification of Electronic Office Equipment Providing Accessibility for the Handicapped. This clause instructs the Offeror to identify in its offer any special peripheral that will facilitate electronic office equipment accessibility for handicapped individuals.

(47) 552.238-71, Submission and Distribution of Authorized FSS Schedule Price Lists. This clause provides to the Contractor the responsibility of printing and distributing its Authorized FSS Schedule Price List after award.

(48) 552.238-72, Identification of Products that have Environmental Attributes. This clause provides to the ordering activity the requirement to purchase supplies that are not harmful to the environment.

(49) 552.238-73, Cancellation. This clause provides to the Contractor the policy and procedures for cancelling a contract.

(50) 552.238-74, Industrial Funding Fee and Sales Reporting. This clause provides to the Contractor the requirement to report all contract sales under the contract to GSA on a quarterly basis.

(51) 552.238-75, Price Reductions. This clause provides to the Offeror the requirement to establish an agreed-upon price and discount relationship with the Government prior to award.

(52) 552.238-77, Definition (Federal Supply Schedules). This clause defines eligible ordering activities authorized to place orders under FSS contracts.

(53) 552.238-78, Scope of Contract (Eligible Ordering Activities). This clause outlines solicitations issued to establish contracts which may be used on a non-mandatory basis by designated ordering activities as a source of supply for supplies or services for domestic and/or overseas delivery.

(54) 552.238-79, Use of Federal Supply Schedule Contracts by Certain Entities—Cooperative Purchasing. This clause outlines to ordering activities the procedures for use of Federal Supply Schedules by State and Local Governments.

(55) 552.238-81, Placement of Orders by Eligible Ordering Activities. This clause instructs to eligible ordering activities the procedures for placing orders through the Electronic Data Interchange (EDI).

(56) 552.238-82, Discounts for Prompt Payments (Federal Supply Schedule). This clause provides the Offeror the Government's consideration of discount for early payment.

(57) 552.238-83, Contractor's Billing Responsibilities. This clause provides to the Contractor the requirements of billing responsibilities, particularly those associated with participating dealers.

(58) 552.238-84, Payment by Credit Card. This clause provides to the Offeror the mandatory acceptance of payment of the Governmentwide Commercial Purchase Card.

(59) 552.238-85, Payments by Non-Federal Ordering Activities. This clause provides to eligible non-federal ordering activities the procedures for payment under a State prompt payment law versus the Federal Prompt Payment Act.

(60) 552.238-86, Warranty-Multiple Award Schedule (currently 552.246-73). This clause provides, for domestic or overseas, the application of the Contractor's standard commercial warranty.

(61) 552.238-87, Warranty (I-FSS-542-A). This clause provides procedures for the necessary adjustment of procured equipment when the Government is not at fault.

(62) 552.238-88, Service Points (I-FSS-626). This clause instructs the Offeror to provide information in its price list addressing supply and service points.

(63) 552.238-89, Contract Sales Criteria (I-FSS-639). This clause provides the anticipated sales expected to be generated by a contract and the Government's right to cancel the contract if they are not met.

(64) 552.238-90, Dealers and Suppliers (I-FSS-644). This clause instructs Offerors that are other than the manufacturer the requirement to submit a letter of commitment to assure an uninterrupted source of supply to satisfy the Government's requirements.

(65) 552.238-91, Blanket Purchase Agreements (BPAs) (I-FSS-646). This clause provides to the Contractor the procedures for entering into Blanket Purchase Agreements (BPAs) with ordering activities.

(66) 552.238-92, Dissemination of Information by Contractor (I-FSS-680). This clause provides to the Contractor the responsibility of distributing Authorized Federal Supply Schedule Price Lists to all authorized sales outlets.

(67) 552.238-93, Purchase of Open Market Items (CI-FSS-055). This clause provides to the ordering activity the treatment of open market items under BPAs and individual task or delivery orders placed against a Federal Supply Multiple Award Schedule (MAS) contract.

(68) 552.238-94, Contractor Tasks/Special Requirements (C-FSS-370). This clause provides to the Contractor special requirements that may be needed when completing various tasks.

(69) 552.238-95, Commercial Delivery Schedule (Multiple Award Schedule) (currently 552.211-78). This clause provides to the Offeror the requirement to address normal commercial delivery times in its offer.

(70) 552.238-96, Preparation of Offer (Multiple Award Schedule) (currently 552.212-70). This clause provides to the Offeror the requirement of including specified information used for evaluation purposes when preparing its offer.

(71) 552.238-97, Examination of Records by GSA (Multiple Award Schedule) (currently 552.215-71). With the Senior Procurement Executive's approval, the contracting officer may modify the clause at 552.238-97 to provide for post-award access to and the right to examine records to verify that the pre-award/modification pricing, sales or other data related to the supplies or services offered under the contract which formed the basis for the award/modification was accurate, current, and complete. The following procedures apply:

(i) Such a modification of the clause must provide for the right of access to expire two years after award or modification.

(ii) Before modifying the clause, the Contracting Officer must make a determination that absent such access there is a likelihood of significant harm to the Government and submit it to the Senior Procurement Executive for approval.

(iii) The determinations under paragraph (d)(2) must be made on a schedule-by-schedule basis.

(72) 552.238-98, Price Adjustment—Failure to Provide Accurate Information (currently 552.215-72).

(i)
Multiple and single award schedules.
Insert the following alternate FAR clauses in solicitations and

contracts issued under FSS, when applicable:

(A) Alternate IV of the FAR provision at 52.215-20, Requirements for Cost or Pricing Data or Information Other Than Cost or Pricing Data. The Contracting Officer should insert the following in paragraph (b) of the provision:

(B) An offer prepared and submitted in accordance with the clause at 552.238-96, Preparation of Offer (Multiple Award Schedule) (currently 552.212-70).

(C) The Offeror shall submit commercial sales practices in the format provided in this solicitation in accordance with the instructions in 552.238-65, Commercial Sales Practices Format—Supplies and/or Services with an Established Catalog Price List (CSP-1); or 552.238-66, Commercial Sales Practices Format—Supplies and/or Services with Market Pricing Without an Established Catalog Price (CSP-2).

(D) Any additional supporting information requested by the Contracting Officer. The Contracting Officer may require additional supporting information, but only to the extent necessary to determine whether the price(s) offered is fair and reasonable.

(E) By submission of an offer in response to this solicitation, the Offeror grants the Contracting Officer or an authorized representative the right to examine, at any time before initial award, books, records, documents, papers, and other directly pertinent records to verify the pricing, sales and other data related to the supplies or services proposed in order to determine the reasonableness of price(s). Access does not extend to Offeror's cost or profit information or other data relevant solely to the Offeror's determination of the prices to be offered in the catalog or marketplace.

(ii) Alternate IV of FAR 52.215-21, Requirements for Cost or Pricing Data or Information Other Than Cost or Pricing Data-Modifications. The Contracting Officer should insert the following in paragraph (b) of the clause:

(A) Information required by the clause at GSAR 552.238-67, Modifications (Multiple Award Schedule) (currently 552.243-72).

(B) Any additional supporting information requested by the Contracting Officer. The Contracting Officer may require additional supporting information, but only to the extent necessary to determine whether the price(s) offered is fair and reasonable.

(C) By submitting a request for modification, the Contractor grants the Contracting Officer or an authorized representative the right to examine, at any time before agreeing to a modification, books, records, documents, papers, and other directly pertinent records to verify the pricing, sales and other data related to the supplies or services proposed in order to determine the reasonableness of price(s). Access does not extend to Contractor's cost or profit information or other data relevant solely to the Contractor's determination of the prices to be offered in the catalog or marketplace.

(73) 552.238-99, Task Order Period of Performance. This clause indicates that orders placed under a FSS contract which include priced options that were evaluated at the time the order was placed, allows those options to be exercised if the contract has expired.

(74) 552.238-100, Deliveries Beyond the Contractual Period—Placing of Orders (G-FSS-910). This clause allows orders to be processed if they were received prior to the expiration of the contract.

(75) 552.238-101, Award (L-FSS-59). This provision lets Offerors know that only a formal written notification from the Government can be interpreted as a notice of award.

(76) 552.238-102, Interpretation of Contract Requirements (I-FSS-965). This indicates that only written clarifications regarding interpretation of contract clauses may only be made by the Contracting Officer or his/her designated representative.

5. Add Subpart 538.15, consisting of sections 538.1504 and 538.1508, to read as follows:

Subpart 538.15—Negotiation and Award of Contracts

Sec.
538.1504
Evaluation of commercial pricing practices.
538.1508 Price reductions.

538.1504
Evaluation of commercial pricing practices.
(a) The Government will seek to obtain the Offeror's best price (the best price given to the most favored customer). However, the Government recognizes that the terms and conditions of commercial sales vary and there may be legitimate reasons why the best price is not achieved.

(b) The contracting officer will establish negotiation objectives based on a review of relevant data, and determine price reasonableness.

(c) When establishing negotiation objectives and determining price reasonableness, the contracting officer shall compare the terms and conditions of the FSS solicitation with the terms and conditions of agreements with the Offeror's commercial customers. When determining the Government's price negotiation objectives, the following factors, at a minimum, shall be considered:

(1) Aggregate volume of anticipated sales.

(2) The purchase of a minimum quantity or a pattern of historic purchases.

(3) Pricing, taking into consideration any combination of discounts and concessions offered to commercial customers. In the case of services, geographic location, description of duties, education and experience.

(4) Length of the contract period.

(5) Warranties, training, and/or maintenance included in the purchase price or provided at additional cost to the product prices.

(6) Ordering and delivery practices.

(7) Any other relevant information, including differences between the FSS solicitation and commercial terms and conditions that may warrant differentials between the offer and the discounts offered to the most favored commercial customer(s). For example, an Offeror may incur more expense selling to the Government than to the customer who receives the Offeror's best price, or the customer (
e.g.
, dealer, distributor, original equipment manufacturer, other reseller) who receives the best price may perform certain value-added functions for the Offeror that the Government does not perform. In such cases, some reduction in the discount given to the Government may be appropriate. If the best price is not offered to the Government, the contracting officer should ask the Offeror to identify and explain the reason for any differences. Offerors should not be required to provide detailed cost breakdowns.

(d) The contracting officer may award a contract containing pricing which is less favorable than the best price the Offeror extends to any commercial customer for similar purchases if the contracting officer makes a determination that both of the following conditions exist:

(1) The prices offered to the Government are fair and reasonable, even though comparable discounts were not negotiated.

(2) Award is otherwise in the best interest of the Government.

538.1508
Price reductions.

(a) Section 552.238-75, Price Reductions, requires the Contractor to maintain during the contract period the negotiated price/discount relationship (and/or term and condition relationship)

between the Government and the Offeror's customer or category of customers on which the contract award was predicated. If a change occurs in the Contractor's commercial pricing or discount arrangement applicable to the identified commercial customer (or category of customers) that results in a less advantageous relationship between the Government and this customer or category of customers, the change constitutes a “price reduction.”

(b) The contracting officer shall ensure that the Contractor understands the requirements of section 552.238-75 and agrees to report all price reductions as provided for in the clause to the Government.

6. Add Subpart 538.25, consisting of section 538.2502, to read as follows:

Subpart 538.25—Requirement for Foreign Entities

Sec.
538.2502
English language and U.S. dollar requirements.

538.2502
English language and U.S. dollar requirements.
(a) Offerors shall reprint their commercial price list in English if it is not published and disseminated commercially in English.

(b) Overseas customers may make payments for supplies or services in local currencies.

7. Add Subpart 538.42, consisting of sections 538.4201-3, 538.4206, and 538.4206-1, to read as follows:

Subpart 538.42—Contract Administration

Sec.
538.4201-3
IFF and Contractor partnering arrangements.
538.4206
Contractor cancellation of FSS contract.
538.4206-1
Processing cancellation of a Contractor request.

538.4201-3
IFF and Contractor partnering arrangements.
Contractors participating in Contractor Partnering Arrangements must abide by all terms and conditions of their respective contracts, including compliance with clause 552.238-74, Industrial Funding Fee and Sales Reporting.

538.4206
Contractor cancellation of FSS contract.

538.4206-1
Processing cancellation at Contractor request.
Contractor-requested cancellations shall be formalized by a contract modification, which incorporates the Contractor's letter and indicates the effective date of the cancellation (30 days after written notice). The contracting officer is responsible for ensuring that the modification distributed to the Contractor and the administrative contracting officer. The modification will provide a formal notice to the administrative contracting officer and an appropriate closure to the contract file. Contractors should be reminded that they are responsible for completion of any outstanding orders. The contracting officer must cancel the contract in FSS Online.

8. Add Subpart 538.43, consisting of section 538.4303-3, to read as follows:

Subpart 538.43—Contract Modifications

Sec.
538.4303-3
Contractor initiated modifications.

538.4303-3
Contractor initiated modifications.
All Contractor modification requests must adequately describe and justify the proposed changes. However, there are certain modification requests that require additional documentation before they can be evaluated and approved. Examples of such modification requests include economic price adjustments, price reductions, and the addition/deletion of items. The specific documentation required to be submitted for each of these actions is identified under the Modifications and/or Economic Price Adjustment clauses that are applicable to the contract. If any modification request fails to provide current, accurate, and complete information as required by the terms and conditions in the contract, the contracting officer should return the request and detail its deficiencies to the Contractor.

PART 552—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

552.211-78
[Redesignated as 552.238-95]
9. Redesignate section 552.211.78 as 552.238-95.

552.212-70
[Redesignated as 552.238-96]
10. Redesignate section 552.212.70 as 552.238-96.

552.215-71
[Redesignated as 552.238-97]
11. Redesignate section 552.215-71 as 552.238-97.

552.215-72
[Redesignated as 552.238-98]
12. Redesignate section 552.215.72 as 552.238-98.

552.216-70
[Redesignated as 552.238-68]
13. Redesignate section 552.216-70 as section 552.238-68.

14. Add sections 552.238-1 through 552.238-66 to read as follows:

552.238-1
Cover Page for Worldwide Multiple Award Schedules (CP-FSS-1-C).
As prescribed in 538.1203(a)(1), insert the following provision:

WORLDWIDE FEDERAL SUPPLY SCHEDULE CONTRACT (CP-FSS-1-C) (DATE)

Solicitation No. *____*

Federal Supply Schedule Contract for All Geographic Areas

FSC Group *____* Part *____* Section *____*.

Supply: *____*.

FSC Class(es)/Product Code(s)/NAICS: *____* and/or

Service: *____*.

Service Code(s)/NAICS: *____*.

Any information that may be desired on this particular solicitation can be obtained from the issuing office; address shown herein.

(End of Provision)

552.238-2
Significant Changes (CP-FSS-2).
As prescribed in 538.1203(a)(2), insert the following provision:

SIGNIFICANT CHANGES (CP-FSS-2) (DATE)

The following changes have been made since the issuance of the solicitation for the supplies and/or services covered herein:

*____*.

(End of Provision)

552.238-3
Pricing (CP-FSS-19).
As prescribed in 538.1203(a)(3), insert the following provision:

PRICING (CP-FSS-19) (DATE)

Offerors are advised that separate pricing may be submitted for different countries if separate pricing is consistent with the Offeror's commercial sales practice.

(End of Provision)

552.238-4
Notice of Total Small Business Set-Aside (A-FSS-31).
As prescribed in 538.1203(a)(4), insert the following provision:

NOTICE OF TOTAL SMALL BUSINESS SET-ASIDE (A-FSS-31) (DATE)

The clause entitled “Notice of Total Small Business Set-Aside,” applies to the following items in this solicitation: *____*.

(End of Provision)

552.238-5
Information Collection Requirements and Hours of Operation (A-FSS-41).

As prescribed in 538.1203(a)(5), insert the following provision:

INFORMATION COLLECTION REQUIREMENTS AND HOURS OF OPERATION (A-FSS-41) (DATE)

(a) “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. 3090-0163.”

(b) “GSA's hours of operation are 8:00 a.m. to 4:30 p.m. Requests for preaward debriefings postmarked or otherwise submitted after 4:30 p.m. will be considered submitted the following business day. Requests for postaward debriefings delivered after 4:30 p.m. will be considered received and filed the following business day.”

(End of Provision)

552.238-6
Notice: Requests for Explanation or Information (CP-FSS-3).
As prescribed in 538.1203(a)(6), insert the following provision:

NOTICE: REQUESTS FOR EXPLANATION OR INFORMATION (CP-FSS-3) (DATE)

Oral or written requests for explanation or information regarding this solicitation should be directed to:

General Services Administration

*____*

*____*

*____*

or

Phone *____*.

Note:

Important
. Do not address offers, modifications or withdrawals to the address in this provision. The address designated for receipt of offers is contained elsewhere in this solicitation.

(End of Provision)

552.238-7
Estimated Sales (B-FSS-96).
As prescribed in 538.1203(b)(1), insert the following provision:

ESTIMATED SALES (B-FSS-96) (DATE)

The “Estimated Sales” column of the Schedule of Items shows (1) a twelve-month reading of purchases in dollars or purchases in units as reported by the previous Contractor(s), or (2) estimates of the anticipated dollar volume where the item is new. The absence of a figure indicates that neither reports of previous purchases nor estimates of sales are available.

*____*.

(End of Provision)

552.238-8
Consideration of Offers Under Standing Solicitation (A-FSS-11).
As prescribed in 538.1203(b)(2), insert the following provision:

CONSIDERATION OF OFFERS UNDER STANDING SOLICITATION (A-FSS-11) (DATE)

(a) This solicitation is a standing solicitation from which the Government contemplates award of contracts for supplies/services listed in the Schedule of Items. This solicitation will remain in effect unless replaced by a refreshed solicitation.

(b) There is no closing date for receipt of offers; therefore, offers may be submitted for consideration at any time.

(c) Contracts awarded under this solicitation will be in effect for 5 years from the date of award, unless further extended, pursuant to clause 552.238-50/I-FSS-163, Option to Extend the Term of the Contract (Evergreen), canceled pursuant to the Cancellation clause, or terminated pursuant to the termination provisions of the contract.

(End of Provision)

552.238-9
Period for Acceptance of Offers (A-FSS-12-C).
As prescribed in 538.1203(b)(3), insert the following provision:

PERIOD FOR ACCEPTANCE OF OFFERS (A-FSS-12-C) (DATE)

Paragraph (c) of the provision 52.212-1, Instructions to Offerors—Commercial Items, is revised to read as follows: “The Offeror agrees to hold the prices in its offer for *____* calendar days from the date of the offer, within which the offer may be accepted.”

(End of Provision)

552.238-10
Additional Offer Submission Instructions (Federal Supply Schedules) (SCP-FSS-001).
As prescribed in 538.1203(b)(4), insert the following provision:

ADDITIONAL OFFER SUBMISSION INSTRUCTIONS (FEDERAL SUPPLY SCHEDULES) (DATE)

(a) All information provided by the Offeror shall be current, accurate, and complete, and shall demonstrate a thorough understanding of the scope of this solicitation and where applicable, described in the Statement of Work. By signing the offer, the Offeror attests that there have been no changes to the text of this solicitation. Proposed exceptions shall be stated in writing and submitted with Administration/Contract Data.

(b) All offers must include the following, as applicable to the solicitation. Any deficiencies or omitted information may result in the offer being returned without further consideration.

(c)
Solicitation response/vendor response document.
(1) If available, the preferred submission method is electronically via eOffer (
http://eOffer.gsa.gov
). Offerors must have a digital certificate, which is available at the eOffer Web site, to submit an electronic offer.

(2) Alternately, submit the entire paper solicitation with a signed Standard Form 1449, unless otherwise directed in the solicitation. The most recent refresh of this solicitation can be viewed on FedBizOpps. Submissions of previous versions received more than thirty (30) calendar days after the issuing date of the current version of the solicitation will be rejected.

(d)
Exhibit I—Administrative/Contract Data.
(1) “Pathway to Success” training certificate. “Pathway to Success” training is available through the Vendor Support Center Web site at
http://vsc.gsa.gov.
Click on the tab “Vendor Training” to access this free, Web-based training. The training session is less than two hours total and covers the major factors your organization should consider prior to submitting an offer to a FSS solicitation.

(2) If a consultant or an agent, other than an employee of the company, is being used during or after award, submit an agent authorization letter signed by a company official.

(3) A copy of the current and up-dated registration in Central Contractor Registry (CCR).

(4) The complete Online Representations and Certifications Application (ORCA). The information is current, accurate, and complete, and reflects the North American Industrial Classification System (NAICS) code(s) for this solicitation.

(5) A completed Open Ratings, Inc. (ORI) Past Performance Evaluation and Order Form (references).

(6) When applicable, a Small Business Subcontracting Plan. A sample outline that may be used in preparing a subcontracting plan is included at FedBizOpps. (ref. FAR 19.704).

(7) Offeror shall provide the current contract number(s) and price lists of any other FSS Schedule contract(s).

(8) If other than the manufacturer, Offeror must provide guaranteed source of supply letters (letters of commitment).

(9) Additional solicitation specific instructions: *____*.

(d)
Exhibit II, Technical Offer.
(1) Technical Offer for supplies—

(i) Refer to 552.212-73.

(ii) Other pertinent factors, if any: *____*

(2) Technical Offer for Services: The technical offer is comprised of three factors—Factor One (Corporate Experience), Factor Two (Relevant Project Experience), and Factor Three (Past Performance). All offers shall address these factors as instructed in this provision. If the Offeror is proposing multiple Special Item Numbers (SINs), they shall clearly identify each SIN with the corresponding technical information. Please provide a narrative for each of the following sections to demonstrate the company's capabilities in satisfying ALL underlying requirements as listed in this provision.

(i) Factor One—Corporate Experience: Submit a (three page maximum) narrative describing the company's corporate experience in a market relevant to this solicitation, regardless of the number of SINs being offered. Company must have provided the offered services for at least two years. At a minimum, the narrative must include the following:

(A) Number of years of corporate experience; to include quality control measures to facilitate high quality

performance. A brief history of the organization's activities contributing to experience in the field and to the development of expertise and capabilities.

(B) If applicable, Offeror must submit a Professional Compensation Plan as defined by 29 CFR 541 and in accordance with clause 52.222-16 and a copy of the Offeror's policy that addresses uncompensated overtime in accordance with provision 52.237-10, Identification of Uncompensated Overtime.

(C) Additional solicitation specific instructions: *____*

(ii)
Factor Two—Relevant Experience.
(A) For each SIN, the Offeror must provide descriptions (four page maximum) of two (2) contracts/agreements/projects, with similar scope and complexity to the work relevant to the scope of the solicitation. Each description must demonstrate how it is relevant to the SIN(s).

(B) To be relevant, the service must either have been completed within the last two years or be on-going. Additional solicitation specific instructions: *____*

(C) Each contract/agreement/project description shall include the following customer reference information:

(1) Contract/Agreement/Project name;

(2) Project description, including any challenges, actions and resolutions;

(3) Dollar amount of contract;

(4) Project duration, which includes the original estimated completion date and the actual completion date; and

(5) Point of contact, telephone number, and email address.

(D) Substitution For Relevant Contract/ Agreement/Project Experience—If contract/agreement/project experience does not exist, the Offeror may substitute relevant contract/agreement/project of predecessor company(ies) and personnel that have a vested interest in the company (
i.e.
, substantial financial interest). If the Offeror chooses to make such a substitution, the narratives must clearly identify the predecessor company(ies) and personnel. (Refer to FAR 15.305(a)(2) and Comptroller General Decision: B-296197 June 30, 2005).

(iii) Factor Three—Past Performance: The Offeror shall provide a Past Performance Evaluation from Open Ratings, Inc. (ORI) dated within 12-months of offer submission. Offerors are responsible for payment to ORI for the Past Performance Evaluation. See attached form.

(e)
Exhibit III—Price Offer.
(1) For supplies and/or services based on an established catalog price, Offerors must submit:

(i) The commercial catalog, price list, schedule, and/or other pricing document(s) used as the basis of the offer; and

(ii) The proposed discount(s) and/or concession(s) offered under this solicitation.

(2) For supplies and/or services based on market prices without an established catalog price, the Offeror must submit a document including description of line item, proposed pricing, concessions, terms and conditions offered under the solicitation. Travel cost shall not be included in the proposed pricing. Additional solicitation specific instructions: *____*

(3) Any deficiencies or omitted information may result in the offer being returned without further consideration.

(End of Provision)

552.238-11
Additional Evaluation Factors for Award of Services (CI-FSS-151).
As prescribed in 538.1203(b)(5), insert the following provision:

ADDITIONAL EVALUATION FACTORS FOR AWARD OF SERVICES (CI-FSS-151) (DATE)

The Government will consider award for a responsible Offeror, whose offer conforms to all solicitation requirements, is determined technically acceptable, has acceptable past performance, and whose prices are determined fair and reasonable.

(a)
Exhibit II—Technical Offer.
Technical Offer will be reviewed, evaluated and rated acceptable or unacceptable based on the three evaluation factors described in this provision. Award will be made on a SIN basis. A rating of “unacceptable” under any evaluation factor, by SIN, will result in an “unacceptable” rating overall for that SIN. Offers determined unacceptable for all proposed SIN(s) will be rejected.

(1)
Factor One—Corporate Experience.
Failure to provide the information as described in the 552.238-10 will result in an “unacceptable” rating for that SIN.

(i) *____* years corporate experience in the industry relevant to the scope of the solicitation.

(ii) Description of quality control measure(s) evaluated as set forth in FAR 12.208 and FAR 46.4.

(iii) Review the compensation plans as set forth in FAR 52.222-46 Evaluation of Compensation for Professional Employees and FAR 52.237-10 Identification of Uncompensated Overtime for acceptability.

(iv) Additional solicitation specific evaluation factors: *____*

(2)
Factor Two—Relevant Experience
. The Offeror must demonstrate the satisfactory completion of contracts/agreements/projects, which are of a similar size and scope as anticipated under this contract.

(i) Contracts/agreements/projects have been completed within two years of the submission of the offer.

(ii) In order for the projects to be acceptable, the Offeror must demonstrate a commitment to customer service, timeliness, quality of services and personnel provided, and resolution of conflicts.

(3)
Factor Three—Past Performance.
Past performance evaluation will be conducted as set forth in FAR 12.206 and FAR 15.3.

(i) Open Ratings Past Performance Evaluation will be considered, along with other information available to the Contracting Officer in determining the past performance rating of the Offeror. The government reserves the right to consider any other pertinent information.

(ii) The Government will evaluate the Offeror's performance in the following key areas: overall performance, reliability, order accuracy, delivery/timeliness, quality, business relations, personnel, customer support, and responsiveness. Those Offerors demonstrating a pattern of consistent acceptable performance will receive an acceptable rating.

(iii) Those Offerors with no relevant performance history will received a neutral rating.

(b)
Exhibit III—Price Offer.
(1) In order for the offer to be rated acceptable, the Contracting Officer must determine that the proposed pricing is fair, reasonable, and supportable, based on the submission of sufficient pricing information as outlined in the 552.238-65/CSP-1 and/or 552.238-66/CSP-2.

(2) The proposed pricing must be advantageous to the government. If the pricing offered is not “equal to or lower than” the lowest billable net rate, an acceptable justification must be provided.

(3) Additional evaluation factors unique to this solicitation: *____________*

(c) The government reserves the right to award without discussions. Therefore, the Offeror's initial offer should contain the best terms from a price and technical standpoint.

(End of Provision)

552.238-12
Submission of Offers—Additional Instructions (CI-FSS-002).
As prescribed in 538.1203(b)(6), insert the following provision:

SUBMISSION OF OFFERS—ADDITIONAL INSTRUCTIONS (CI-FSS-002) (DATE)

Offerors are requested to submit a signed original and *____* copies of SF 1449 together with all addenda and attachments complete in every respect with the exception of oversized blueprints, drawings, or similar documents attached to the solicitation. Oversized blueprints, drawings, or similar documents are not required to be duplicated for the purpose of submitting a duplicate copy of the offer.

(End of Provision)

552.238-13
Impact of Mandatory Use on Quantities Ordered (B-FSS-97).
As prescribed in 538.1203(b)(7), insert the following provision:

IMPACT OF MANDATORY USE ON QUANTITIES ORDERED (B-FSS-97) (DATE)

This solicitation represents the first instance where the General Services Administration is the only agency listed as a mandatory user. It is not known how this change will impact on the quantities ordered under this contract.

(End of Provision)

552.238-14
Introduction of New Supplies/Services (INSS) (L-FSS-400).
As prescribed in 538.1203(b)(8), insert the following provision:

INTRODUCTION OF NEW SUPPLIES/SERVICES (INSS) (L-FSS-400) (DATE)

(a)
Definition. Introduction of New Supplies/Services Special Item Number (INSS SIN)
means a new or improved supply or service within the scope of the Federal Supply Schedule (FSS), but not currently

available under any Federal Supply Service contract—that provides a new service, function, task, or attribute that may provide a more economical or efficient means for ordering activities to accomplish their missions. It may significantly improve an existing supply or service. It may be a supply or service existing in the commercial market, but not yet introduced to the Federal Government.

(b) Offerors are encouraged to introduce new or improved supplies or services via INSS SIN at any time by clearly identify the INSS SIN item in the offer.

(c) The Contracting Officer has the sole discretion to determine whether a supply or service will be accepted as an INSS SIN item. The Contracting Officer will evaluate and process the offer and may perform a technical review. The INSS SIN provides temporary placement until the Contracting Officer formally categorizes the new supply or service.

(d) If the Contractor has an existing schedule contract, the Government may, at the sole discretion of the Contracting Officer, modify the existing contract to include the INSS SIN item in accordance with 552.238-67, Modifications (Multiple Award Schedule) (currently 552.243-72).

(End of Provision)

552.238-15
Contract Price List (I-FSS-600).
As prescribed in 538.1203(b)(9), insert the following provision:

CONTRACT PRICE LIST (I-FSS-600) (DATE)

(a)
Electronic Contract Data.
(1) At the time of award, the Contractor will be provided instructions and is responsible for submitting electronic contract data in a prescribed electronic format as required by clause 552.238-71, Submission and Distribution of Authorized FSS Schedule Price Lists.

(2) The Contractor will have a choice to transmit its file submissions electronically through Electronic Data Interchange (EDI) in accordance with the Federal Implementation Convention (IC) or use the application made available at the time of award. The Contractor's electronic files must be complete; correct; readable; virus-free; and contain only those supplies and services, prices, and terms and conditions that were accepted by the Government. They will be added to GSA's electronic ordering system known as GSA
Advantage
!®, a menu-driven database system that provides online access to contract ordering information, terms and conditions, up-to-date pricing, and the option to create an electronic order. The Contractor's electronic files must be received no later than sixty (60) days after award, unless addition time is approved by the Contracting Officer. Contractors should refer to clause 552.238-58 GSA
Advantage
!® (I-FSS-597) for further information.

(3) Further details on EDI, ICs, and GSA
Advantage
!® can be found in clause 552.238-59 Electronic Commerce—FACNET (I-FSS-599).

(4) The Contractor is encouraged to place the GSA identifier (logo) on their website for those supplies or services covered by this contract. The logo can link to the Contractor's FSS price list. The identifier URL is located at
www.gsa.gov/logo.
All resultant “web price lists” shown on the Contractor's website must be in accordance with section (b)(3)(ii) of this clause and nothing other than what was accepted/awarded by the Government may be included. If the Contractor elects to use contract identifiers on its website (either logos or contact number) the website must clearly distinguish between those items awarded on the contract and any other items offered by the Contractor on an open market basis.

(5) The Contractor is responsible for keeping all electronic catalog data up to date;
e.g.
, prices, supply deletions and replacements.

(b)
FSS Price List.
(1) When requested by an ordering activity, the Contractor must prepare, print, and distribute a paper FSS Price List as required by clause 552.238-71 Submission and Distribution of Authorized FSS Price Lists. This must be done as set forth in this paragraph (b).

(2) When required, the Contractor must prepare a paper FSS Price List by either:

(i) Using the commercial catalog, price list, schedule, or other document as accepted by the Government, showing accepted discounts, and removing all items, terms, and conditions not accepted by the Government by lining out those items or by a stamp across the face of the item stating “NOT UNDER CONTRACT” or “EXCLUDED”; or

(ii) Composing a price list in which only those items, terms, and conditions accepted by the Government are included, and which contain only net prices, based upon the commercial price list less discounts accepted by the Government. In this instance, the Contractor must show on the cover page the notation, “Prices Shown Herein are Net (discount deducted)”.

(3) The FSS Price List format must include the following information:

(i)
Cover page.
The cover page should include the following information:

(A) Authorized FSS Price List.

(B) On-line access to contract ordering information, terms and conditions, up-to-date pricing, and the option to create an electronic delivery order are available through GSA
Advantage
!®, a menu-driven database system. The INTERNET address GSA
Advantage
!® is:
www.GSAAdvantage.gov.

(C) Schedule Title.

(D) FSC Group, Part, and Section.

(E) FSC Class(es)/Product Code(s) and/or Service Codes (as applicable).

(F) Contract number.

(G) For more information on ordering from Schedules click on the link titled “Schedules” under Acquisition Solutions from at
gsa.gov/fas.

(H) Contract period.

(I) Contractor's name, address, email, fax number and phone number (as applicable).

(J) Contractor's internet address/website where schedule information can be found (as applicable). Contract administration source (if different from preceding entry).

(K) Business size.

(L) This price list is current through modification/refresh number: (sequentially numbered).

(ii)
Customer information.
The following information should be placed under this heading in consecutively numbered paragraphs in the sequence set forth in this provision. If this information is placed in another part of the FSS Price List, a table of contents must be shown on the cover page that refers to the exact location of the information.

1. Table of awarded special item number(s) with appropriate cross-reference to category descriptions.

2. Maximum order.

3. Minimum order.

4. Geographic coverage (delivery area).

5. Point(s) of Production (city, county, and State or foreign country). All items are Trade Agreement Act, as amended, compliant.

6. Discount from list prices or statement of net price.

7. Quantity discounts.

8. Prompt payment terms.

9a. Notification that payment by credit cards must be accepted at or below the micro-purchase threshold.

9b. Notification whether payment by credit cards are accepted or not accepted above the micro-purchase threshold.

10. Foreign items (list items by country of origin).

11a. Time of delivery. (Contractor insert number of days.)

11b. Expedited Delivery. The Contractor will insert the sentence “Items available for expedited delivery are noted in this price list.” under this heading. The Contractor may use a symbol of its choosing to highlight items in its price lists that have expedited delivery.

11c. Overnight and 2-day delivery. The Contractor will indicate whether overnight and 2-day delivery are available. Also, the Contractor will indicate that the schedule customer may contact the Contractor for rates for overnight and 2-day delivery.

11d. Urgent Requirements. The Contractor will note in its price list the “Urgent Requirements” clause of its contract and advise agencies that they can also contact the Contractor's representative to effect a faster delivery.

12. F.O.B. point(s).

13a. Ordering address(es).

13b. Ordering procedures: For supplies and services, the ordering procedures, information on Blanket Purchase Agreements (BPA's) are found in Federal Acquisition Regulation (FAR) 8.405-3.

14. Payment address(es).

15. Warranty provision.

16. Export packing charges, if applicable.

17. Terms and conditions of payment by credit cards acceptance (any thresholds above the micro-purchase level).

18. Terms and conditions of rental, maintenance, and repair (if applicable).

19. Terms and conditions of installation (if applicable).

20. Terms and conditions of repair parts indicating date of parts price lists and any discounts from list prices (if applicable).

20a. Terms and conditions for any other services (if applicable).

21. List of service and distribution points (if applicable).

22. List of participating dealers (if applicable).

23. Preventive maintenance (if applicable).

24a. Special attributes such as environmental attributes (
e.g.
, recycled content, energy efficiency, and/or reduced pollutants).

24b. If applicable, indicate that Section 508 compliance information is available on Electronic and Information Technology (EIT) supplies and services and show where full details can be found (
e.g.
Contractor's Web site or other location). The EIT standards can be found at:
www.Section508.gov
.

25. Data Universal Number System (DUNS) number.

26. Notification regarding registration in Central Contractor Registration (CCR) database.

27a. Identification of the lowest priced model number and lowest unit price for that model for each special item number awarded in the contract. This price is the Government price based on a unit of one, exclusive of any quantity/dollar volume, prompt payment, or any other concession affecting price. Those contracts that have unit prices based on the geographic location of the customer, should show the range of the lowest price, and cite the areas to which the prices apply.

27b. If the Contractor is proposing hourly rates, a description of all corresponding commercial job titles, experience, functional responsibility and education for those types of employees or subContractors who will perform services shall be provided. If hourly rates are not applicable, indicate “Not applicable” for this item.

(4) When requested, the Contractor must provide, in the format requested by the Contracting Officer (electronic or paper) of the FSS Price Lists (including covering letters) within 30 days after the date of award. Accuracy of information and computation of prices is the responsibility of the Contractor. Note: The removal discussed in subdivision (b)(2) of this provision must be accomplished prior to the printing and distribution of the FSS Lists.

(5) Inclusion of incorrect information (electronically or paper) will cause the Contractor to reprint/resubmit/correct and redistribute the FSS Price List, and may constitute sufficient cause for Cancellation, applying the provisions of 52.212-4, Contract Terms and Conditions (paragraph (m), Termination for Cause), and application of any other remedies as provided by law—including monetary recovery.

(6) In addition, one copy of the FSS Price List must be submitted to the: GSA, Federal Acquisition Service, National Customer Service Center (QC0CC), Bldg. #4, 1500 E. Bannister Road, Kansas City, MO 64131-3009, Telephone: 1 (800) 488-3111.

Alternate I—use for Schedule 70 only. Replace paragraph (b) of the base clause with the following paragraph (b) (Date):

(b)
FSS Price List.
(1) When submitting a paper offer, the Offeror should prepare a paper Information Technology Schedule Price List in accordance with the Attachment titled “Guidelines for Format and Content of Authorized Information Technology Schedule Price List”. Two (2) copies of the proposed Information Technology Schedule Price List shall be submitted with the Offeror's proposal.

(2) The Contracting Officer will return one copy of the Authorized Information Technology Schedule Price List to the Contractor with the notification of contract award. In accordance with GSAR clause 552.238-71 the Contractor may print and distribute the awarded price list without written approval from the Contracting Officer. The price list must include all applicable terms and conditions of the cited contract. The Contractor will be responsible for the accuracy of the price list.

(3) As an option, the Contractor may provide one (1) copy (including cover letter) of the Authorized Information Technology Schedule Price List to the Contracting Officer for review prior to distribution. Accuracy of information and computation of prices is the responsibility of the Contractor.

(4) The Contractor may formally print and distribute the Authorized Information Technology Schedule Price List. Inclusion of incorrect information (electronically or in paper) will cause the Contractor to reprint/resubmit/correct and redistribute the price list, and may constitute sufficient cause for Cancellation, applying the provisions of 52.212-4, Contract Terms and Conditions (paragraph (m), Termination for Cause) and application of any other remedies as provided by law—including monetary recover

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3AE9-1096. Public record. Not legal advice.