General Services Administration Acquisition Regulation (GSAR); Updating References to Commercial Items

CourtGeneral Services Administration
Citation86 FR 68441
Publication Date02 December 2021
Record Number2021-25274
Federal Register, Volume 86 Issue 229 (Thursday, December 2, 2021)
[Federal Register Volume 86, Number 229 (Thursday, December 2, 2021)]
                [Rules and Regulations]
                [Pages 68441-68444]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2021-25274]
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                GENERAL SERVICES ADMINISTRATION
                48 CFR Parts 502, 509, 511, 512, 514, 532, 536, 538, and 552
                [GSAR Case 2021-G510; Docket No. GSA-GSAR 2021-0026; Sequence No. 1]
                RIN 3090-AK37
                General Services Administration Acquisition Regulation (GSAR);
                Updating References to Commercial Items
                AGENCY: Office of Acquisition Policy, General Services Administration
                (GSA).
                ACTION: Final rule.
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                SUMMARY: The General Services Administration (GSA) is issuing a final
                rule amending the General Services Administration Acquisition
                Regulation (GSAR) to conform to changes in the Federal Acquisition
                Regulation (FAR) that reflect an updated ``commercial item'' definition
                pursuant to a section of the John S. McCain National Defense
                Authorization Act (NDAA) for Fiscal Year (FY) 2019.
                DATES: Effective January 3, 2022.
                FOR FURTHER INFORMATION CONTACT: Mr. Stephen Carroll at 817-253-7858 or
                [email protected], for clarification of content. For information
                pertaining to status or publication schedules, contact the Regulatory
                Secretariat at 202-501-4755. Please cite GSAR Case 2021-G510.
                SUPPLEMENTARY INFORMATION:
                I. Background
                 This final rule amends the General Services Administration
                Acquisition Regulation (GSAR) to change instances of ``commercial
                item(s)'' with commercial product(s), commercial services(s), or both
                commercial product(s) and commercial service(s) to match similar
                actions taken in the Federal Acquisition Regulation (FAR).
                 FAR Case 2018-018 was published as a final rule at 86 FR 61017 on
                November 4, 2021, to implement section 836 of the John S. McCain
                National Defense Authorization Act for Fiscal Year 2019 to separate the
                definition of ``commercial item'' into the definitions of ``commercial
                product'' and ``commercial service.''
                 It is important to note that the amendment to separate ``commercial
                item'' with ``commercial product'' and ``commercial service'' does not
                expand or shrink the universe of products or services that the
                Government may procure using GSAR part 512, nor does it change the
                terms and conditions vendors must comply with.
                 This rule does not add any new solicitation provisions or contract
                clauses. This rule merely replaces the term ``commercial item(s)'' with
                ``commercial product(s),'' ``commercial service(s),'' ``commercial
                product(s) or commercial service(s),'' or ``commercial product(s) and
                commercial service(s)'' in the GSAR including in part 552, as
                appropriate. It does not add any new burdens because the case does not
                add or change any requirements with which vendors must comply.
                II. Authority for This Rulemaking
                 Title 40 of the United States Code (U.S.C.) Section 121 authorizes
                GSA to issue regulations, including the GSAR, to control the
                relationship between GSA and contractors.
                III. Discussion and Analysis
                 As changed by FAR Case 2018-018, and as required by section 836 of
                the NDAA for FY 2019, this final rule replaces instances of commercial
                item(s) with commercial product(s), commercial service(s), or both
                commercial product(s) and commercial service(s).
                 This final rule also replaces all instances of ``non-commercial''
                and ``noncommercial'' with ``other than commercial'' as it relates to
                this rule. This is an editorial change and will provide consistent
                language to the FAR and throughout the GSAR.
                 Other minor editorial changes are made in this final rule to
                provide consistent language.
                IV. Executive Orders 12866 and 13563
                 Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
                all costs and benefits of available regulatory alternatives and, if
                regulation is necessary, to select regulatory approaches that maximize
                net benefits (including potential economic, environmental, public
                health and safety effects, distributive impacts, and equity). E.O.
                13563 emphasizes the importance of quantifying both costs and benefits,
                of reducing costs, of harmonizing rules, and of promoting flexibility.
                This rule has been reviewed and determined by OMB not to be a
                significant regulatory action and, therefore, was not subject to review
                under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated
                September 30, 1993.
                V. Congressional Review Act
                 The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by
                the Small Business Regulatory Enforcement Fairness Act of 1996,
                generally provides that before a ``major rule'' may take
                [[Page 68442]]
                effect, the agency promulgating the rule must submit a rule report,
                which includes a copy of the rule, to each House of the Congress and to
                the Comptroller General of the United States. A major rule cannot take
                effect until 60 days after it is published in the Federal Register.
                This rule has been reviewed and determined by OMB not to be a ``major
                rule'' under 5 U.S.C. 804(2).
                VI. Notice for Public Comment
                 The statute that applies to the publication of the GSAR is the
                Office of Federal Procurement Policy statute (codified at title 41 of
                the United States Code). Specifically, 41 U.S.C. 1707(a)(1) requires
                that a procurement policy, regulation, procedure or form (including an
                amendment or modification thereof) must be published for public comment
                if it relates to the expenditure of appropriated funds, and has either
                a significant effect beyond the internal operating procedures of the
                agency issuing the policy, regulation, procedure, or form, or has a
                significant cost or administrative impact on contractors or offerors.
                This rule is not required to be published for public comment, because
                GSA is not issuing a new regulation; rather, this rule is merely an
                editorial change and will provide consistent language to the FAR
                (pursuant to section 836 of the John S. McCain National Defense
                Authorization Act for Fiscal Year 2019) throughout the GSAR. The rule
                does not expand or shrink the universe of products or services that the
                Government may procure using GSAR part 512, nor does it change the
                terms and conditions vendors must comply with.
                 This rule does not add any new solicitation provisions or contract
                clauses. This rule merely replaces the term ``commercial item(s)'' with
                ``commercial product(s),'' ``commercial service(s),'' ``commercial
                product(s) or commercial service(s),'' or ``commercial product(s) and
                commercial service(s)'' in the GSAR including in part 552, as
                appropriate. It does not add any new burdens because the case does not
                add or change any requirements with which vendors must comply.
                VII. Regulatory Flexibility Act
                 The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) does not
                apply to this rule, because an opportunity for public comment is not
                required to be given for this rule under 41 U.S.C. 1707(a)(1) (see
                Section VI. of this preamble). Accordingly, no regulatory flexibility
                analysis is required and none has been prepared.
                VIII. Paperwork Reduction Act
                 The final rule does not contain any information collection
                requirements that require the approval of the Office of Management and
                Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
                List of Subjects in 48 CFR Parts 502, 509, 511, 512, 514, 532, 536,
                538, and 552
                 Government procurement.
                Jeffrey Koses,
                Senior Procurement Executive, Office of Acquisition Policy, Office of
                Government-wide Policy, General Services Administration.
                 Therefore, GSA amends 48 CFR parts 502, 509, 511, 512, 514, 532,
                536, 538, and 552 as set forth below:
                0
                1. The authority citation for 48 CFR parts 502, 509, 511, 512, 514,
                532, 536, 538, and 552 continues to read as follows:
                 Authority: 40 U.S.C. 121(c).
                PART 502--DEFINITIONS OF WORDS AND TERMS
                502.101 [Amended]
                0
                2. Amend section 502.101 in the introductory text by--
                0
                a. Removing the words ``that meet'' and adding the words ``that meets''
                in its place;
                0
                b. Removing the words ``commercial item'' and adding the words
                ``commercial products and commercial services'' in its place; and
                0
                c. Removing the word ``supply'' and adding the words ``product'' in its
                place.
                PART 509--CONTRACTOR QUALIFICATIONS
                509.405-1 [Amended]
                0
                3. Amend section 509.405-1 by removing from paragraph (b)(6)
                ``commercial items.)'' and adding ``commercial products and commercial
                services).'' in its place.
                PART 511--DESCRIBING AGENCY NEEDS
                511.602 [Amended]
                0
                4. Amend section 511.602 by removing from introductory text of
                paragraph (d) ``any items'' and adding ``any product or service'' in
                its place.
                PART 512--ACQUISITION OF COMMERCIAL PRODUCTS AND COMMERCIAL
                SERVICES
                0
                5. Revise the heading for part 512 to read as set forth above.
                0
                6. Revise the heading of subpart 512.3 to read as follows:
                Subpart 512.3--Solicitation Provisions and Contract Clauses for the
                Acquisition of Commercial Products and Commercial Services
                512.301 [Amended]
                0
                7. Amend section 512.301 by--
                0
                a. Removing from the section heading and paragraph (a) introductory
                text ``commercial items'' and adding ``commercial products and
                commercial services'' in its place;
                0
                b. Removing from paragraph (a)(1) ``Acquisition of Commercial Items''
                and ``commercial items'' and adding ``Acquisitions of Commercial
                Products and Commercial Services'' and ``commercial products and
                commercial services'' in their places, respectively;
                0
                c. Removing from paragraph (a)(2) ``Commercial Items'' and ``commercial
                item'' and adding ``Commercial Products and Commercial Services'' and
                ``commercial products and commercial services'' in their places,
                respectively;
                0
                d. Removing from paragraph (b) ``Commercial Items'' and adding
                ``Commercial Products and Commercial Services'' in its place; and
                0
                e. Removing from paragraph (d)(1) ``commercial items'' and adding
                ``commercial products and commercial services'' in its place.
                PART 514--SEALED BIDDING
                514.201-2 [Amended]
                0
                8. Amend section 514.201-2 by removing from paragraph (b) ``Commercial
                Items'' and adding ``Commercial Products and Commercial Services'' in
                its place.
                514.270-1 [Amended]
                0
                9. Amend section 514.270-1 by removing ``FAR 3.302'' and adding ``FAR
                2.101'' in its place.
                514.270-4 [Amended]
                0
                10. Amend section 514.270-4 in paragraph (d)(3)(ii) by removing
                ``commercial items'' and adding ``commercial products'' in its place
                and removing the word ``etc.''.
                514.270-7 [Amended]
                0
                11. Amend section 514.270-7 by removing from paragraph (d) ``item''
                everywhere it appears and adding ``product'' in its place.
                PART 532--CONTRACT FINANCING
                0
                12. Revise the heading of subpart 532.1 to read as follows:
                [[Page 68443]]
                Subpart 532.1--Financing for Other Than a Commercial Purchase
                532.908 [Amended]
                0
                13. Amend section 532.908 by removing from paragraph (b)(2) ``not for
                commercial items'' and adding ``for other than commercial products or
                commercial services'' in its place.
                PART 536--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
                536.7104 [Amended]
                0
                14. Amend section 536.7104 by removing ``services or items'' and adding
                ``services or supplies'' in its place.
                PART 538--FEDERAL SUPPLY SCHEDULE CONTRACTING
                538.271 [Amended]
                0
                15. Amend section 538.271 by removing from paragraph (a) ``commercial
                items as defined in FAR 2.101'' and adding ``commercial products and
                commercial services'' in its place.
                538.273 Amended]
                0
                16. Amend section 538.273 by--
                0
                a. Removing from paragraph (b) introductory text ``Commercial Items''
                and adding ``Commercial Products and Commercial Services'' in its
                place;
                0
                b. Removing from paragraph (c) introductory text ``Evaluation--
                Commercial Items'' and adding ``Evaluation--Commercial Products and
                Commercial Services'' in its place;
                0
                c. Removing from paragraph (c)(1) ``Commercial Items'' and adding
                ``Commercial Products and Commercial Services'' in its place;
                0
                d. Removing from paragraph (d) introductory text ``Conditions--
                Commercial Items'' and adding ``Conditions--Commercial Products and
                Commercial Services'' in its place;
                0
                e. Removing from paragraph (d)(2) ``contemplate items'' and adding the
                word ``contemplate products'' in its place;
                0
                f. Removing from paragraphs (d)(19) and (32) ``for items'' and adding
                ``for products'' in its place; and
                0
                g. Removing from paragraph (d)(35) ``when items'' and adding ``when
                products'' in its place.
                538.7003 [Amended]
                0
                17. Removing from paragraph (a) ``Conditions--Commercial Items'' and
                adding ``Conditions--Commercial Products and Commercial Services'' in
                its place.
                PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
                0
                18. Amend section 552.212-4 by revising the section heading, clause
                heading, and the date of the clause to read as follows:
                552.212-4 Contract Terms and Conditions--Commercial Products and
                Commercial Services (FAR DEVIATION).
                * * * * *
                Contract Terms and Conditions--Commercial Products and Commercial
                Services (FAR DEVIATION) (JAN, 2022).
                * * * * *
                0
                19. Amend section 552.212-71 by--
                0
                a. Revising the section heading, clause heading, and date of the
                clause; and
                0
                b. In paragraph (a) introductory text:
                0
                i. Removing ``items or components'' and adding ``products, including
                commercial components, and commercial services'' in its place; and
                0
                ii. Removing from the last sentence ``The clauses'' and adding ``The
                GSAR clauses'' in its place.
                 The revisions read as follows:
                552.212-71 Contract Terms and Conditions Applicable to GSA
                Acquisitions of Commercial Products and Commercial Services.
                * * * * *
                Contract Terms and Conditions Applicable to GSA Acquisitions of
                Commercial Products and Commercial Services (JAN, 2022).
                * * * * *
                0
                20. Amend section 552.212-72 by--
                0
                a. Revising the section heading, clause heading, and date of the
                clause; and
                0
                b. Removing from the introductory text of the clause ``commercial items
                or components'' and adding ``commercial products, including commercial
                components, and commercial services'' in its place.
                 The revisions read as follows:
                552.212-72 Contract Terms and Conditions Required To Implement
                Statutes or Executive Orders Applicable to GSA Acquisition of
                Commercial Products and Commercial Services.
                * * * * *
                Contract Terms and Conditions Required To Implement Statutes or
                Executive Orders Applicable to GSA Acquisition of Commercial Products
                and Commercial Services (JAN, 2022)
                * * * * *
                0
                21. Amend section 552.232-25 by:
                0
                a. Revising the date of the clause; and
                0
                b. Removing from paragraph (a)(5) introductory text ``Commercial
                Items'' and adding ``Commercial Products and Commercial Services'' in
                its place.
                 The revision reads as follows:
                552.232-25 Prompt Payment.
                * * * * *
                Prompt Payment (JAN, 2022)
                * * * * *
                0
                22. Amend section 552.238-75 by--
                0
                a. Revising the section heading, clause heading, and date of the
                clause; and
                0
                b. In paragraph (a):
                0
                i. Revising the first sentence;
                0
                ii. Removing from the second sentence ``complexity of items'' and
                adding ``complexity of products or services'' in its place; and
                0
                iii. Removing from the last sentence ``the item(s)'' and adding ``the
                products or services'' in its place.
                 The revisions read as follows:
                552.238-75 Evaluation--Commercial Products and Commercial Services
                (Federal Supply Schedule).
                * * * * *
                Evaluation--Commercial Products and Commercial Services (Federal Supply
                Schedule) (JAN, 2022)
                 (a) The Government may make multiple awards for the supplies or
                services offered in response to this solicitation that meet the
                commercial product or commercial service definition in FAR clause
                52.202-1. * * *
                * * * * *
                0
                23. Amend section 552.238-78 by:
                0
                a. Revising the date of the clause; and
                0
                b. Removing from paragraph (d) introductory text ``an item's'' and
                adding ``an product's'' in its place.
                 The revision reads as follows:
                552.238-78 Identification of Products That Have Environmental
                Attributes.
                * * * * *
                Identification of Products That Have Environmental Attributes (JAN,
                2022)
                * * * * *
                0
                24. Amend section 552.238-82 by--
                0
                a. Revising the date of the clause;
                0
                b. Removing form paragraph (b)(1)(vii) ``Commercial Items'' and adding
                ``Commercial Products and Commercial Services'' in its place; and
                0
                c. Removing from Alternate II, paragraph (b)(1)(v), ``Commercial
                Items'' and adding ``Commercial Products or Services'' in its place.
                 The revision reads as follows:
                552.238-82 Modifications (Federal Supply Schedules).
                * * * * *
                [[Page 68444]]
                Modifications (Federal Supply Schedules) (JAN, 2022)
                * * * * *
                0
                25. Amend section 552.238-111 by--
                0
                a. Revising the date of the clause; and
                0
                b. Removing form paragraph (c) ``Commercial Items'' and adding
                ``Commercial Products and Commercial Services'' in its place.
                 The revision reads as follows:
                552.238-111 Environmental Protection Agency Registration Requirement.
                * * * * *
                Environmental Protection Agency Registration Requirement (JAN, 2022)
                * * * * *
                0
                26. Amend section 552.238-114 by--
                0
                a. Revising the date of the clause; and
                0
                b. Removing form paragraph (a)(1) ``Commercial Item'' and adding
                ``Commercial Products and Commercial Services'' in its place.
                 The revision reads as follows:
                552.238-114 Use of Federal Supply Schedule Contracts by Non-Federal
                Entities.
                * * * * *
                Use of Federal Supply Schedule Contracts by Non-Federal Entities (JAN,
                2022)
                * * * * *
                [FR Doc. 2021-25274 Filed 12-1-21; 8:45 am]
                BILLING CODE 6820-61-P
                

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