General Services Administration Acquisition Regulation; Updated Guidance for Non-Federal Entities Access to Federal Supply Schedules
| Court | General Services Administration |
| Citation | 88 FR 63892 |
| Published date | 18 September 2023 |
| Record Number | 2023-20098 |
Federal Register, Volume 88 Issue 179 (Monday, September 18, 2023)
[Federal Register Volume 88, Number 179 (Monday, September 18, 2023)]
[Proposed Rules]
[Pages 63892-63897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-20098]
[[Page 63892]]
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GENERAL SERVICES ADMINISTRATION
48 CFR Parts 538 and 552
[GSAR Case 2020-G511; Docket No. 2023-0019; Sequence No. 1]
RIN 3090-AK21
General Services Administration Acquisition Regulation; Updated
Guidance for Non-Federal Entities Access to Federal Supply Schedules
AGENCY: Office of Acquisition Policy, General Services Administration
(GSA).
ACTION: Proposed rule.
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SUMMARY: GSA is proposing to amend the General Services Administration
Acquisition Regulation (GSAR) to update and clarify the requirements
for use of Federal Supply Schedule (FSS) contracts by eligible non-
Federal entities, such as State and local governments.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat Division at the address shown below on or before
November 17, 2023 to be considered in the formation of the final rule.
ADDRESSES: Submit comments in response to GSAR Case 2020-G511 to
https://www.regulations.gov via the Federal eRulemaking portal by
searching for ``GSAR Case 2020-G511''. Select the link ``Comment Now''
that corresponds with GSAR Case 2020-G511. Follow the instructions
provided at the ``Comment Now'' screen. Please include your name,
company name (if any), and ``GSAR Case 2020-G511'' on your attached
document. If your comment cannot be submitted using https://www.regulations.gov, call or email the points of contact in the FOR
FURTHER INFORMATION CONTACT section of this document for alternate
instructions.
Instructions: Please submit comments only and cite GSAR Case 2020-
G511, in all correspondence related to this case. Comments received
generally will be posted without change to https://www.regulations.gov,
including any personal and/or business confidential information
provided. To confirm receipt of your comment(s), please check https://www.regulations.gov, approximately two-to-three days after submission
to verify posting.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Mr. Thomas O'Linn, Procurement Analyst, at [email protected] or 202-
445-0390. For information pertaining to status or publication
schedules, contact the Regulatory Secretariat Division at
[email protected] or 202-501-4755. Please cite GSAR Case 2020-G511.
SUPPLEMENTARY INFORMATION:
I. Background
GSA conducts routine reviews of its acquisition regulations.
Routine review of the GSAR, as well as feedback from GSA's operational
offices, prompted this change. The review indicated a need to update
and clarify GSAR subpart 538.70, Purchasing by Non-Federal Entities.
GSAR subpart 538.70 prescribes the policies and procedures that
implement statutory, regulatory, and other provisions that authorize
eligible non-Federal entities (e.g., State or local governments as
defined in 40 U.S.C. 502(c)(3)) use of Federal Supply Schedule (FSS)
contracts.
The GSA Schedule, also known as FSS, and Multiple Award Schedule
(MAS), is a long-term governmentwide contract with commercial companies
that provide access to millions of commercial products and services at
fair and reasonable prices to the Federal Government and other
authorized ordering activities.
This change will update and clarify GSAR subpart 538.70, which
supports use of FSS contracts by eligible non-Federal entities. This
subpart is being revised to make administrative changes due to changes
in some of the underlying authorities supporting use of FSS contracts
by eligible non-Federal entities. This rule also updates and clarifies
existing requirements supporting use of FSS contracts by eligible non-
Federal entities, adds additional key authorities that support such
use, and makes additional technical corrections to enhance clarity of
existing requirements.
II. Discussion and Analysis
This rule proposes to revise GSAR subpart 538.70 in its entirety in
an effort to: (1) update and clarify existing requirements supporting
use of FSS contracts by eligible non-Federal entities; (2) clarify GSAR
clause requirements (e.g., remove redundant information); (3) and
reflect changes based on some of the underlying authorities that
provide use of FSS contracts by eligible non-Federal entities; (4) add
additional key authorities that support such use. A summary of these
revisions is as follows:
A. Subpart 538.70--Purchasing by Non-Federal Entities, is being
renamed as Subpart 538.70--Use of GSA's Federal Supply Schedule
Contracts by Eligible Non-Federal Entities. The purpose for renaming
this subpart is to provide clarity that this subpart deals only with
Federal Supply Schedule contracts. The intent is to resolve any
confusion around non-Federal entity access to other GSA programs and
contracts.
B. Section 538.7000 Scope of subpart, is revised in its entirety to
clarify the scope of this subpart. The change is intended to resolve
confusion around the scope of this subpart and its relation to other
GSA programs and contracts.
C. Section 538.7001 Definitions, is revised in its entirety to: add
definitions for purposes of clarity, revise existing definitions for
purposes of clarity or currency, and remove definitions determined to
be no longer necessary. For example, the existing definitions for
``preparedness'', ``recovery'', and ``response'' are being revised to
reflect updates to FEMA's National Response Framework, which addresses
disasters and other incidents. Definitions for ``non-Federal entity''
and ``eligible'', are also being added. The definition for ``non-
Federal entity'' provides needed clarity surrounding the use of this
term within the FSS program. The definition for ``eligible'' provides a
needed qualifier for understanding the difference between a non-Federal
entity that is able to use FSS contracts and one that is not. The
definitions for ``relief'', ``ordering activity'', and ``state and
local government entities'' are being removed as they have been
determined to be no longer necessary.
D. Section 538.7002 General, is being renamed as 538.7002
Authorities, and revised in its entirety. The revision: (1) renames the
section to accurately reflect the content of the section, which is to
provide a list of the authorities supporting use of FSS contracts by
eligible non-Federal entities; (2) identifies and clarifies a number of
existing authorities available to eligible non-Federal entities; (3)
identifies additional authorities not currently identified in this
section (e.g., the addition of the Indian Self-Determination and
Education Assistance Act (ISDEAA) authority); (4) provides for the
inclusion of additional future authorities that may impact the
eligibility of non-Federal entities (i.e., currently 538.7002 provides
only a limited enumerated list of authorities); and (5) provides a
hyperlink to a GSA website that provides additional information about
the authorities supporting the use of FSS contracts by eligible non-
Federal entities.
E. Section 538.7003 Policy, is being renamed as 538.7003 Non-
Federal entity requirements, and revised in its entirety. The revision:
(1) removes the ability to deviate from various FAR provisions
[[Page 63893]]
and clauses; (2) provides clarity on the use of FSS contracts by
eligible non-Federal entities; and (3) adds a hyperlink to GSA's
website that provides GSA FSS ordering guidance to eligible non-Federal
entities.
F. Section 538.7004 Solicitation provisions and contract clauses,
is being renamed as 538.7004 GSA responsibilities, and revised in its
entirety. The revision describes GSA's responsibilities concerning the
use of FSS contracts by eligible non-Federal entities. These
responsibilities reflect existing requirements, thus the intent of
moving them to the GSAR is to enhance awareness of these requirements.
G. Section 538.7005 Contract clause, is a new section being added
to the subpart. This new section provides for the prescription of GSAR
clause 552.238-114, which is being revised under this proposed rule.
H. GSAR clause 552.238-105, Deliveries Beyond the Contractual
Period--Placing of Orders, is being revised. The revision updates the
citation to GSAR clause 552.238-113, which is being revised and renamed
under this proposed rule. The revision changes the citation from
``Clause 552.238-113, Scope of Contract (Eligible Ordering
Activities)'' to ``the GSAR clause at 552.238-113, Authorities
Supporting Use of Federal Supply Schedule Contracts.''
I. GSAR Clause 552.238-112, Definitions (Federal Supply Schedules)
Non-Federal Entity, is being revised, and renamed as 552.238-112,
Definitions--Federal Supply Schedule Contracts. The revision provides
for a definition for the word `eligible' and an updated definition for
the term `ordering activity.' The definition for ``eligible'' provides
a needed qualifier for understanding the difference between a non-
Federal entity that is authorized to use FSS contracts and one that is
not. The update to the definition for the term `ordering activity' is
needed in order to capture the ability for ordering activities to
establish blanket purchase agreements under FSS contracts.
J. GSAR clause 552.238-113, Scope of Contract (Eligible Ordering
Activities), is being revised, and renamed 552.238-113, Authorities
Supporting Use of Federal Supply Schedule Contracts. The revision: (1)
renames the clause so as to clarify this clause applies to FSS
contracts; (2) removes unnecessary or redundant information that is
contained elsewhere in the FSS solicitation and resultant contracts;
(3) streamlines the clause to focus solely on the authorities that
support use of FSS contracts; and (4) provides an updated list of the
primary authorities supporting use of FSS contracts.
K. GSAR clause 552.238-114, Use of Federal Supply Schedule
Contracts by Non-Federal Entities, is being revised and renamed
552.238-114, Use of Federal Supply Schedule Contracts by Eligible Non-
Federal Entities. The revision: (1) renames the clause to add the word
``eligible'' to the clause title; (2) captures the ability for eligible
non-federal entities to establish blanket purchase agreements under FSS
contracts (which is currently not addressed in the existing clause);
and (3) clarifies the requirements that apply to use of FSS contracts
by eligible non-Federal entities.
L. Lastly, section 538.273, FSS solicitation provisions and
contract clauses, is being revised to provide for the prescription of
GSAR clauses 552.238-112 and 552.238-113, which are being revised and
renamed under this proposed rule. Section 538.273 is appropriate
because this is where FSS GSAR provisions and clauses are located.
III. Expected Impact of the Rule
GSA believes that these changes benefit the FSS program as a whole.
For example, these changes provide visibility into the resources and
authorities available to eligible non-Federal entities who may be
interested in using FSS contracts. Additionally, these changes clarify
the requirements for FSS contractors interested in doing business with
eligible non-Federal entities under their FSS contract. These changes
do not alter the manner in which the FSS contractors conduct business,
or the manner in which eligible non-Federal entities may access and use
FSS contracts. The rule merely updates and clarifies requirements
currently in use in the FSS program, such as updating and clarifying
existing statutory, regulatory, and other authorities that enable
eligible non-Federal entities use of FSS contracts. GSA assumes these
changes will have a positive impact on the FSS program as a whole,
including FSS contractors and eligible non-Federal entities.
The qualitative anticipated benefits include, but are not limited
to, removal of outdated and redundant information; clarification of the
requirements supporting use of FSS contracts by eligible non-Federal
entities; clarification of the authorities providing use of FSS
contracts by eligible non-Federal entities (e.g., adding the authority
provided by the Indian Self-Determination and Education Assistance Act
that allows tribal organizations and Indian tribes to use FSS contracts
under certain conditions); identification of some of the programs
created for purpose of implementing some of these authorities (e.g.,
GSA's Disaster Purchasing program which implements 40 U.S.C. 502(d));
clarification on who is and who is not considered eligible to use FSS
contracts (i.e., providing a definition for `eligible' and `non-Federal
entity'); and inclusion of hyperlinks to resources that provide
additional information about eligibility and use of FSS contracts
(e.g., https://www.gsa.gov/eligibilitydeterminations includes a list
that FSS contractors can use to verify an entity's eligibility).
Due to these benefits, GSA estimates the following annual reduction
in burden due to the proposed clarifications: GSA estimates it takes 3
hours for FSS contractors to familiarize (read and understand the
applicable GSAR requirements of this proposed rule) themselves with the
regulations. Therefore, for FSS contractors:
Prior to the revisions: the current estimated total cost is 3 hours
* $61.29 \1\ (GS-12 Step 5 base pay plus ``Rest of US Locality Pay''
plus ``Fringe'') * 13,000 approximate number of current FSS contractors
= $2,390,310.00.
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\1\ The hourly rate for GS-12 is $61.29 ($44.98 as a GS-12/step
5 salary OPM 2023 pay scale Rest of US, with a 36.25% ($16.31)
fringe factor pursuant to OMB memorandum M-08-13).
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After the revisions: the estimated total cost is 2.5 hours * $61.29
(GS-12 Step 5 base pay plus ``Rest of US Locality Pay'' plus
``Fringe'') * 13,000 approximate number of current FSS contractors =
$2,191,117.50.
Resulting in a reduction in burden of $199,192.50.
IV. Executive Orders 12866, 13563 and 14094
Executive Order (E.O.) 12866 (Regulatory Planning and Review)
directs 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 (Improving Regulation and Regulatory
Review) emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. E.O. 14094 (Modernizing Regulatory Review) supplements and
reaffirms the principles, structures, and definitions governing
contemporary regulatory review established in E.O. 12866 and E.O.
13563. OIRA has determined that
[[Page 63894]]
this rule is not a significant regulatory action, and, therefore, is
not subject to review under section 6(b) of E.O. 12866, Regulatory
Planning and Review, dated September 30, 1993.
V. Regulatory Flexibility Act
GSA does not expect this proposed rule to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
because this rule is to: (1) update and clarify existing requirements
supporting use of FSS contracts by eligible non-Federal entities; (2)
clarify GSAR clause requirements (e.g., rename clauses, remove
redundant or duplicative information); (3) reflect changes based on
some of the underlying authorities that provide eligible non-Federal
entities use of FSS contracts; (4) add additional authorities that
support such use; and (5) include hyperlinks to resources that provide
information about eligibility and use of FSS contracts.
The purpose of the changed text remains the same, and therefore any
burden would have been identified previously. Additionally,
participation by both FSS contractors and eligible non-Federal entities
remains voluntary. However, an Initial Regulatory Flexibility Analysis
(IRFA) has been prepared consistent with 5 U.S.C. 603.
The Regulatory Secretariat will be submitting 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
Division. GSA invites comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities.
GSA will also consider comments from small entities concerning the
existing regulations in subparts affected by the rule in accordance
with 5 U.S.C. 610. Interested parties must submit such comments
separately and should cite 5 U.S.C. 610 (GSAR Case 2020-G511), in
correspondence.
The analysis is summarized as follows:
The objective of the rule is to revise GSAR subpart 538.70 in
its entirety in an effort to: (1) update and clarify existing
requirements supporting use of FSS contracts by eligible non-Federal
entities; (2) clarify GSAR clause requirements (e.g., rename
clauses, remove redundant or duplicative information); (3) reflect
changes based on some of the underlying authorities that provide
eligible non-Federal entities use of FSS contracts; (4) add
additional authorities that support such use; and (5) include
hyperlinks to resources that provide information about eligibility
and use of FSS contracts.
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. In addition, 41 U.S.C.
152 provides GSA authority over the FSS program.
The rule applies to both large and small businesses, which are
awarded FSS contracts and decide to do business with eligible non-
Federal entities who decide to use FSS contracts (i.e.,
participation by all parties is voluntary).
Information obtained from the FSS program was used as the basis
for estimating the number of FSS contractors that the rule may
apply. For fiscal year 2022, approximately 12,000 GSA FSS
contractors reported over $780 million in sales to eligible non-
Federal entities. Of the number of FSS contractors that did business
with eligible non-Federal entities approximately 10,700 (89%) were
small business FSS contractors.
It is anticipated that these changes will increase awareness of
the authorities that allow eligible non-Federal entities use of FSS
contracts as well as the resources available. It is anticipated that
these changes will clarify the requirements for FSS contractors
choosing to do business with eligible non-Federal entities under
their FSS contracts. Altogether, GSA assumes these changes will have
a positive impact on the FSS program as a whole, including FSS
contractors and eligible non-Federal entities.
The rule does not implement new or change reporting,
recordkeeping, or other compliance requirements for FSS contracts.
The rule merely updates and clarifies existing FSS requirements,
such as updating and clarifying existing statutory, regulatory, and
other authorities that enable eligible non-Federal entities use of
FSS contracts. This rule does not implement new or changed
requirements.
The rule does not duplicate, overlap, or conflict with any other
Federal rules.
There are no known alternatives to this rule which would
accomplish the stated objectives. This rule does not initiate or
impose any new administrative or performance requirements on small
business contractors because the policies and procedures prescribed
in existing FSS clauses are already being followed. The rule merely
updates and clarifies existing statutory, regulatory, and other
authorities related to the use of FSS contracts by non-Federal
entities.
VI. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the GSAR do not impose recordkeeping or information collection
requirements, or the collection of information from offerors,
contractors, or members of the public that require the approval of the
Office of Management and Budget (OMB) under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 538 and 552
Government procurement.
Jeffrey A. Koses,
Senior Procurement Executive, Office of Acquisition Policy, Office of
Government-wide Policy, General Services Administration.
Therefore, GSA proposes to amend 48 CFR parts 538 and 552 as set
forth below:
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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
0
2. Amend section 538.273 by--
0
a. Redesignating paragraph (d)(36) as paragraph (d)(38); and
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b. Adding new paragraph (d)(36) and paragraph (d)(37) to read as
follows:
538.273 FSS solicitation provisions and contract clauses.
* * * * *
(d) * * *
(36) 552.238-112, Definitions--Federal Supply Schedule Contracts.
(37) 552.238-113, Authorities Supporting Use of Federal Supply
Schedule Contracts.
* * * * *
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3. Revise subpart 538.70 to read as follows:
Subpart 538.70--Use of Federal Supply Schedule Contracts by Eligible
Non-Federal Entities
538.7000 Scope of subpart.
538.7001 Definitions.
538.7002 Authorities.
538.7002-1 Cooperative purchasing program.
538.7002-2 Disaster purchasing program.
538.7002-3 Public health emergencies program.
538.7002-4 Qualified nonprofit agencies for the blind or other
severely disabled.
538.7002.5 Qualified relief or disaster assistance organizations.
538.7002-6 Indian Self-Determination and Education Assistance Act
(ISDEAA).
538.7002-7 Native American Housing Assistance and Self Determination
Act (NAHASDA).
538.7002-8 Urban Indian organizations.
538.7002-9 Tribally controlled schools.
538.7002-10 1122 Program.
538.7003 Non-Federal entity requirements.
538.7004 GSA responsibilities.
538.7005 Contract clause.
Subpart 538.70--Use of Federal Supply Schedule Contracts by
Eligible Non-Federal Entities
538.7000 Scope of subpart.
This subpart prescribes policies and procedures for implementing
statutory,
[[Page 63895]]
regulatory, and other authorities that authorize use of Federal Supply
Schedule (FSS) contracts by eligible non-Federal entities.
538.7001 Definitions.
As used in this subpart--
Eligible means an entity that meets the requirements prescribed by
statute, regulation, or other authority for purposes of being able to
use FSS contracts. Information about GSA's FSS eligibility process is
available at https://www.gsa.gov/eligibilitydeterminations.
Non-Federal entity means any state, local, territorial, or tribal
government, or any instrumentality thereof (including any local
educational agency or institution of higher education); and any other
non-Federal organization (e.g., a qualified nonprofit agency as defined
in 40 U.S.C. 502(b)).
Preparedness means actions that may include, but are not limited
to: planning, resourcing, organizing, equipping, training, and
conducting exercises to improve, build and sustain the capabilities
necessary to prevent, protect, mitigate, respond, and recover from
disaster.
Recovery means actions taken to assist communities affected by an
incident to recover effectively. This includes, but is not limited to,
actions to restore, redevelop, and revitalize the health, social,
economic, natural, and environmental fabric of the community. Recovery
may begin while response is still occurring.
Response means actions taken during a disaster, or in its
aftermath, in order to save lives, protect property and the
environment, and meet basic human needs. Response also includes the
execution of emergency plans and actions to enable recovery from a
disaster.
538.7002 Authorities.
Various laws, regulations, and other authorities allow eligible
non-Federal entities to use FSS contracts. This section identifies some
of the common authorities allowing eligible non-Federal entities to use
FSS contracts. See https://www.gsa.gov/eligibilitydeterminations for
additional information about the authorities available.
538.7002-1 Cooperative purchasing program.
40 U.S.C. 502(c) allows State or local governments, as defined in
40 U.S.C. 502(c)(3), to purchase the types of supplies and services
described in 40 U.S.C. 502(c). The supplies and services described in
40 U.S.C. 502(c) are limited to those available under the Information
Technology Category, and the Security and Protection Category (or
successor category(ies)). The GSA program that implements this
authority is called the Cooperative Purchasing program.
538.7002-2 Disaster purchasing program.
(a) 40 U.S.C. 502(d) allows State or local governments, as defined
in 40. U.S.C. 502(c)(3), to purchase supplies or services that are to
be used to facilitate--
(1) Disaster preparedness or response;
(2) Recovery from a major disaster declared by the President under
the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42
U.S.C. 5121 et seq.); or
(3) Recovery from terrorism, nuclear, biological, chemical, or
radiological attack.
(b) The GSA program that implements this authority is called the
Disaster Purchasing program.
538.7002-3 Public health emergencies program.
42 U.S.C. 247d allows State or local governments, as defined in 40
U.S.C. 502(c)(3), to purchase supplies and services when expending
Federal grant funds in response to a public health emergency declared
by the Secretary of Health and Human Services under section 319 of the
Public Health Services Act. The GSA program that implements this
authority is called the Public Health Emergencies program.
538.7002-4 Qualified nonprofit agencies for the blind or other
severely disabled.
40 U.S.C. 502(b) allows qualified nonprofit agencies for the blind
or other severely disabled, as defined by 41 U.S.C. 8501, that are
providing a commodity or service to the Government under 41 U.S.C.
chapter 85, to purchase supplies or services. Purchases under this
authority must be used directly in making or providing to the
Government a commodity or service that has been determined by the
Committee for Purchase From People Who Are Blind or Severely Disabled
under 41 U.S.C. 8503 to be suitable for procurement by the Government.
538.7002-5 Qualified relief or disaster assistance organizations.
40 U.S.C. 502(e) allows the American National Red Cross and other
qualified organizations, as defined in 40 U.S.C. 502(e)(3), to purchase
supplies or services. Purchases under this authority by the American
National Red Cross shall be used in furtherance of the purposes of the
American National Red Cross set forth in 36 U.S.C. 300102. Purchases
under this authority by other qualified organizations shall be used in
furtherance of purposes determined to be appropriate to facilitate
emergency preparedness and disaster relief and set forth in guidance by
the Administrator of General Services, in consultation with the
Administrator of the Federal Emergency Management Agency.
538.7002-6 Indian Self-Determination and Education Assistance Act
(ISDEAA).
(a) 25 U.S.C. 5324 allows tribal organizations, as defined in 25
U.S.C. 5304, that have an active ISDEAA contract, grant, or cooperative
agreement to purchase supplies or services for the purposes of carrying
out the ISDEAA contract, grant, or cooperative agreement.
(b) 25 U.S.C. 5370 allows Indian Tribes, as defined in 25 U.S.C.
5304, that have an active ISDEAA compact or funding agreement to
purchase supplies or services for the purposes of carrying the ISDEAA
compact or funding agreement.
(c) 25 U.S.C. 5396 allows Indian tribes, as defined in 25 U.S.C.
5304, that have an active ISDEAA compact or funding agreement to
purchase supplies or services for the purposes of carrying out the
ISDEAA compact or funding agreement.
538.7002-7 Native American Housing Assistance and Self Determination
Act (NAHASDA).
25 U.S.C. 4111 allows Indian tribes, as defined in 25 U.S.C. 4103,
and tribally designated housing entities, as defined in 25 U.S.C. 4103,
that have an active NAHASDA contract, grant, or cooperative agreement
to purchase supplies and services for the purposes of carrying out the
NAHASDA contract, grant, or cooperative agreement.
538.7002-8 Urban Indian organizations.
25 U.S.C. 1660g(e) allows Urban Indian organizations, as defined in
25 U.S.C. 1603, that have an active contract or grant pursuant to 25
U.S.C. chapter 18 subchapter IV to purchase supplies and services for
the purposes of carrying out the contract or grant.
538.7002-9 Tribally controlled schools.
25 U.S.C. 2507(a)(6) allows tribally controlled schools, as defined
under 25 U.S.C. 2511, that have an active grant pursuant to 25 U.S.C.
chapter 27 to purchase supplies or services for the purposes of
carrying out the grant.
538.7002-10 1122 Program.
10 U.S.C. 281 allows States and units of local government, as
defined in 10 U.S.C. 281, to purchase equipment suitable for counter-
drug, homeland security, and emergency response activities through the
Department of
[[Page 63896]]
Defense. GSA, in coordination with the Secretary of Defense, produces
and maintains a catalog in accordance with the procedures established
by the Secretary of Defense. The catalog includes access to equipment
available under FSS contracts. States and units of local government
interested in using the 1122 program should contact their designated
State point of contact.
538.7003 Non-Federal entity requirements.
Only non-Federal entities that are eligible may use FSS contracts.
Use of FSS contracts by eligible non-Federal entities is voluntary. The
following requirements apply to eligible non-Federal entities who
decide to use FSS contracts:
(a) FSS contractors are not obligated to accept orders or enter
into blanket purchase agreements; however, they are encouraged to do
so.
(b) Purchases cannot be made for personal use.
(c) Purchases cannot be for resale, unless specifically authorized.
(d) At a minimum, purchases shall comply with--
(1) FSS ordering guidance. Information about GSA's FSS contracts,
including ordering guidance is available at https://www.gsa.gov/schedules; and
(2) Any conditions of the underlying authority(ies) supporting the
use of FSS contracts (e.g., 40 U.S.C. 502(c) limits purchases to
specific supplies and services available under the FSS program).
(e) An eligible non-Federal entity's eligibility cannot be
transferred to a third party (e.g., a subcontractor) or successor
entity.
538.7004 GSA responsibilities.
(a) Eligibility determination process. GSA may need to make a
determination of eligibility to support a non-Federal entity's use of
FSS contracts. See https://www.gsa.gov/eligibilitydeterminations for
information about eligibility.
(b) Oversight. To ensure proper use of and access to FSS contracts
by eligible non-Federal entities, GSA may take any action within its
authority as deemed necessary to deny, limit, or restrict use of FSS
contracts, in whole or in part. Reasons may include, but are not
limited to--
(1) A change in an underlying authority;
(2) A change in the terms and conditions of the FSS program or FSS
contracts;
(3) A failure by an eligible non-Federal entity to comply with the
requirements of 538.7003; or
(4) Use by an ineligible non-Federal entity.
538.7005 Contract clause.
Insert the clause at 552.238-114, Use of Federal Supply Schedule
Contracts by Eligible Non-Federal Entities, in FSS solicitations and
contracts.
PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
4. Amend section 552.238-105 by revising the date of the clause and the
first sentence of the paragraph text to read as follows:
552.238-105 Deliveries Beyond the Contractual Period--Placing of
Orders.
* * * * *
Deliveries Beyond the Contractual Period--Placing of Orders (Date)
In accordance with the GSAR clause at 552.238-113, Authorities
Supporting Use of Federal Supply Schedule Contracts, this contract
covers all requirements that may be ordered, as distinguished from
delivered during the contract term. * * *
0
5. Revise sections 552.238-112 through 552.238-114 to read as follows:
552.238-112 Definitions--Federal Supply Schedule Contracts.
As prescribed in 538.273(d) insert the following clause:
Definitions--Federal Supply Schedule Contracts (Date)
As used in this contract,
Eligible means an entity that meets the requirements prescribed
by statute, regulation, or other authority for purposes of being
able to use Federal Supply Schedule (FSS) contracts. Information
about FSS eligibility is available at https://www.gsa.gov/eligibilitydeterminations.
Ordering activity (also called ``ordering agency'' and
``ordering office'') means an entity that is eligible to place
orders or establish blanket purchase agreements (BPA) under this
contract.
(End of clause)
552.238-113 Authorities Supporting Use of Federal Supply Schedule
Contracts.
As prescribed in 538.273(d), insert the following clause:
Authorities Supporting Use of Federal Supply Schedule Contracts (Date)
(a) Ordering activities are able to use Federal Supply Schedule
(FSS) contracts based upon a number of statutes, regulations, and
other authorities. Authorities allowing ordering activities use of
FSS contracts include, but are not limited to:
(1) 25 U.S.C. 1660g(e), which provides for the use by urban
Indian organizations, as defined in 25 U.S.C. 1603, for the purposes
of carrying out a contract or grant pursuant to 25 U.S.C. chapter 18
subchapter IV.
(2) 25 U.S.C. 2507, which provides for the use by tribally
controlled schools, as defined in 25 U.S.C. 2511, for the purposes
of carrying out a grant pursuant to 25 U.S.C. chapter 27 (known as
the Tribally Controlled Schools Act).
(3) 25 U.S.C. 4111, which provides for the use by Indian tribes,
as defined in 25 U.S.C. 4103, and tribally designated housing
entities, as defined in 25 U.S.C. 4103, for the purposes of carrying
out a contract, grant, or cooperative agreement pursuant to 25
U.S.C. chapter 43 (known as the Native American Housing Assistance
and Self Determination Act (NAHASDA)).
(4) 25 U.S.C. 5324, which provides for the use by tribal
organizations, as defined in 25 U.S.C. 5304, for the purposes of
carrying out a contract, grant, or cooperative agreement pursuant to
25 U.S.C. chapter 46 (known as the Indian Self-Determination and
Education Assistance Act (ISDEAA)).
(5) 25 U.S.C. 5370 and 25 U.S.C. 5396, which provides for the
use by Indian tribes, as defined in 25 U.S.C. 5304, for the purpose
of carrying out a compact or funding agreement pursuant to 25 U.S.C.
chapter 46 (known as ISDEAA).
(6) 40 U.S.C. 113(d), which provides for the use by the Senate,
the House of Representatives, and the Architect of the Capitol
(including any building, activity, or function under the direction
of the Architect of the Capitol).
(7) 40 U.S.C. 501, which provides for the use by executive
agencies as defined in 5 U.S.C. 105.
(8) 40 U.S.C. 502(a), which provides for the use by Federal
agencies as defined in 40 U.S.C. 102, the District of Columbia, and
mixed-ownership Government corporations as defined in 31 U.S.C.
9101.
(9) 40 U.S.C. 502(b), which provides for the use by qualified
nonprofit agencies for other severely disabled, as defined in 41
U.S.C. 8501(6), and qualified nonprofit agencies for the blind, as
defined in 41 U.S.C. 8501(7), for the purposes of making or
providing to the Government a commodity or service that has been
determined by the Committee for Purchase From People Who Are Blind
or Severely Disabled under 41 U.S.C. 8503 to be suitable for
procurement by the Government.
(10) 40 U.S.C. 502(c), which provides for the use by State or
local governments, as defined in 40 U.S.C. 502(c)(3)(A), for the
purpose of purchasing the types of supplies and services described
in 40 U.S.C. 502(c). The GSA program implementing this authority is
the Cooperative Purchasing program.
(i) The types of supplies and services described in 40 U.S.C.
502(c) are limited to those available in the Information Technology
Category and the Security and Protection Category (or any successor
categories).
(11) 40 U.S.C. 502(d), which provides for the use by State or
local governments, as defined in 40 U.S.C. 502(c)(3)(A), for the
purposes of facilitating disaster preparedness or response,
facilitating recovery from a major disaster declared by the
President under the Robert T. Stafford Disaster Relief and Emergency
Assistance Act (42 U.S.C. 5121 et seq.), or facilitating recovery
from terrorism, nuclear, biological, chemical, or radiological
attack. The GSA program implementing this authority is the Disaster
Purchasing program.
[[Page 63897]]
(12) 40 U.S.C. 502(e), which provides for the use by the
American National Red Cross and other qualified organizations, as
defined in 40 U.S.C. 502(e)(3). Purchases under this authority by
the American National Red Cross shall be used in furtherance of the
purposes of the American National Red Cross set forth in 36 U.S.C.
300102. Purchases under this authority by other qualified
organizations shall be used in furtherance of purposes determined to
be appropriate to facilitate emergency preparedness and disaster
relief and set forth in guidance by the Administrator of General
Services, in consultation with the Administrator of the Federal
Emergency Management Agency.
(13) 42 U.S.C. 247d, which provides for the use by State or
local governments, as defined in 40 U.S.C. 502(c)(3)(A), when a
public health emergency has been declared by the Secretary of Health
and Human Services under section 319 of the Public Health Services
Act. The GSA program implementing this authority is the Public
Health Emergencies program.
(14) FAR subpart 51.1, which provides for the use by
contractors, including subcontractors, when such use is authorized
pursuant to FAR subpart 51.1.
(End of clause)
552.238-114 Use of Federal Supply Schedule Contracts by Eligible Non-
Federal Entities.
As prescribed in 538.7005, insert the following clause:
Use of Federal Supply Schedule Contracts by Eligible Non-Federal
Entities (Date)
(a) Definition.
Non-Federal entity, as used in this clause, means any state,
local, territorial, or tribal government, or any instrumentality
thereof (including any local educational agency or institution of
higher education); and any other non-Federal organization (e.g., a
qualified nonprofit agency as defined in 40 U.S.C. 502(b)).
(b) Responsibilities. Eligible non-Federal entities are
responsible for complying with--
(1) FSS ordering guidance. Information about GSA's FSS
contracts, including ordering guidance is available at https://www.gsa.gov/schedules; and
(2) Any conditions of the underlying authority(ies) supporting
the use of FSS contracts (e.g., 40 U.S.C. 502(c) limits purchases to
specific supplies and services available under FSS contracts).
(c) Acceptance. (1) The Contractor is encouraged, but not
obligated, to accept orders from eligible non-Federal entities under
this contract. The Contractor may, within 5 business days of receipt
of an order, reject an order from an eligible non-Federal entity for
any reason. However, purchase card orders must be rejected within 24
hours of receipt of the order. Failure to reject an order within
these timeframes shall constitute acceptance.
(2) The Contractor is encouraged, but not obligated, to enter
into blanket purchase agreements (BPAs) with eligible non-Federal
entities under the terms of this contract. The Contractor should
respond to any requests to enter into a BPA within 5 business days
of receipt of the request.
(d) Conditions of acceptance. If the Contractor accepts an order
from or enters into a BPA with an eligible non-Federal entity under
this contract, the following conditions apply:
(1) For orders, a separate contract is formed between the
Contractor and the eligible non-Federal entity (herein ``the
parties''). For BPAs, a separate agreement is formed between the
parties.
(2) The resultant order or BPA shall incorporate by reference
all the terms and conditions of this contract except for:
(i) FAR clause 52.233-1, Disputes, and
(ii) Paragraphs (d) Disputes, (h) Patent indemnity, and (r)
Compliance with laws unique to Government contracts, of GSAR clause
552.212-4, Contract Terms and Conditions--Commercial Products and
Commercial Services.
(3) The U.S. Government is not liable for the performance or
nonperformance of any order or BPA entered into under this contract
by the parties. Disputes which cannot be resolved by the parties may
be litigated in any State or Federal court with jurisdiction over
the parties, applying Federal procurement law, including statutes,
regulations, and case law, and, if pertinent, the Uniform Commercial
Code. To the extent authorized by law, the parties are encouraged to
resolve disputes through alternative dispute resolution.
(4) Neither party will look to, primarily or in any secondary
capacity, or file any claim against the U.S. Government or any of
its agencies with respect to any failure of performance by the other
party.
(e) Additional terms and conditions. Terms and conditions
required by statute, ordinance, regulation, or as otherwise required
by an eligible non-Federal entity may be made a part of an order or
a BPA to the extent that these terms and conditions do not conflict
with the terms and conditions of this contract. The Contractor
should review any such additional terms and conditions prior to
accepting an order or entering into a BPA with an eligible non-
Federal entity.
(f) Payment. (1) The Contractor is responsible for obtaining all
payments due to the Contractor from the eligible non-Federal entity
under the terms and conditions of the order or the BPA entered into
under this contract, without recourse to the U.S. Government or any
of its agencies that awarded this contract or administer this
contract.
(2) If an eligible non-Federal entity is subject to a State
prompt payment law, the terms and conditions of the applicable State
law apply to the orders placed under this contract by such entities.
If an eligible non-Federal entity is not subject to a State prompt
payment law, the terms and conditions of paragraph (i) of the GSAR
clause at 552.212-4, apply to such entities in the same manner as to
Federal entities.
(g) Fee and sales reporting. The requirements of the GSAR clause
at 552.238-80, Industrial Funding Fee and Sales Reporting, apply to
any sales to eligible non-Federal entities under this contract.
(End of clause)
[FR Doc. 2023-20098 Filed 9-15-23; 8:45 am]
BILLING CODE 6820-61-P
