[Federal Register: January 23, 2003 (Volume 68, Number 15)]
[Proposed Rules]
[Page 3220-3225]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23ja03-21]
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GENERAL SERVICES ADMINISTRATION
48 CFR Parts 532, 538, and 552
[GSAR Case No. 2002-G505]
RIN 3090-AH76
General Services Administration Acquisition Regulation; Federal
Supply Schedule Contracts--Acquisition of Information Technology by
State and Local Governments Through Federal Supply Schedules
AGENCY: Office of Acquisition Policy, General Services Administration
(GSA).
ACTION: Proposed rule with request for comments; notice of public
meeting.
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SUMMARY: The General Services Administration (GSA) is proposing to
amend the General Services Administration Acquisition Regulation (GSAR)
to implement section 211 of the E-Government Act of 2002. Section 211
authorizes the Administrator of GSA to provide for the use by States or
local governments of its federal supply schedule for ``automated data
processing equipment (including firmware), software, supplies, support
equipment, and services (as contained in Federal supply classification
code group 70).'' To facilitate an open dialogue between the Government
and interested parties on the implementation of section 211, GSA will
hold a public meeting on the proposed GSAR rule on February 4, 2003.
DATES: Comment Date: Interested parties should submit comments to the
Regulatory Secretariat at the address shown below on or before March
24, 2003, to be considered in the formulation of a final rule.
Public Meeting: A public meeting will be conducted at the address
shown below starting at 10 a.m. to 12 p.m., local time, on February 4,
2003, to ensure an open dialogue between the government and interested
parties on the proposed rule.
ADDRESSES: Submit written comments to--General Services Administration,
Regulatory Secretariat (MVA), 1800 F Street, NW., Room 4035, Attn: Ms.
Laurie Duarte, Washington, DC 20405.
Submit electronic comments via the Internet to--GSARcase.2002-
G505@gsa.gov.
Please submit comments only and cite 2002-G505 in all
correspondence related to this case.
Public Meeting: The location of the public meeting will be at the
GSA Auditorium, 1800 F Street, NW., Washington, DC 20405.
If you wish to attend the meeting and/or make presentations on the
proposed rule, please contact and submit a copy of your presentation by
January 28, 2003, to--General Services Administration, Acquisition
Policy Division (MVP), 1800 F Street, NW., Room 4033, Attn: Beverly
Cromer, Washington, DC 20405. Telephone: (202) 208-6750.
Submit electronic materials via the Internet to--meeting.2002-
G505@gsa.gov.
Please submit presentations only and cite Public Meeting 2002-G505
in all correspondence related to this public meeting. The submitted
presentations will be the only record of the public meeting. If you
intend to have your presentation considered as a public comment on the
proposed rule, the presentation must be submitted separately as a
public comment as instructed above.
FOR FURTHER INFORMATION CONTACT: The Regulatory Secretariat, Room 4035,
GS Building, Washington, DC, 20405, (202) 501-4225, for information
pertaining to status or publication schedules. For clarification of
content, contact Ms. Beverly Cromer, Procurement Analyst, at (202) 208-
6750. Please cite GSAR case 2002-G505.
SUPPLEMENTARY INFORMATION:
A. Background
The Federal Supply Schedule Program, which is directed and managed
by GSA, is designed to provide Federal agencies with a simplified
process of acquiring commonly used commercial supplies and services at
prices associated with volume buying. Ordering activities conduct
streamlined competitions among a number of schedule contractors, issue
orders directly with the selected contractor, and administer orders.
Section 211 of the E-Government Act of 2002 (Pub. L. 107-347)
amends the Federal Property and Administrative Services Act to allow
for ``cooperative purchasing,'' where the Administrator of GSA provides
States and localities access to certain items offered through GSA's
supply schedules. Specifically, section 211 amends 40 U.S.C. 502 by
adding a new subsection ``(c)'' that allows, to the extent authorized
by the Administrator, a State or local government to use ``Federal
supply schedules of the General Services Administration for automated
data processing equipment (ADPE)(including firmware), software,
supplies, support equipment, and services (as contained in Federal
supply classification code group 70).'' ``State or local government''
includes any State, local, regional, or tribal government, or any
instrumentality thereof (including any local educational agency or
institution of higher education).
The proposed rule would establish a new GSAR subpart 538.70 and
associated clauses to address cooperative purchasing from supply
schedules by eligible non-federal organizations. Among other things,
the rule would define the scope of cooperative purchasing, its usage,
and applicable terms and conditions, including payment and the handling
of disputes.
Limited scope. Because the law specifies that schedule access
applies to offerings ``contained in Federal supply classification code
group 70,'' the proposed GSAR changes would limit state and local
purchases to the GSA's Schedule 70 contracts. The rule would not
authorize access to ADPE available through GSA schedules other than
Schedule 70. In addition, the rule would not apply, nor otherwise
affect, supply schedules operated by the Department of Veterans Affairs
under a delegation provided by GSA.
Voluntary use. The authority provided in this rule would be
available for use on a voluntary (i.e., non-mandatory) basis. In other
words, businesses with Schedule 70 contracts would have the option of
deciding whether they will accept orders placed by State or local
government buyers. Existing Schedule 70 contracts would be modified by
mutual agreement of the parties. Even after an existing contract has
been modified, a schedule contractor would retain the right to decline
orders by State or local government buyers on a case-by-case basis.
Future schedule contractors would also be able to decline orders on a
case-by-case basis. (Schedule contractors would be able to decline to
accept any order, for any reason, within a 5-day period of receipt of
the order.) Similarly, the rule would place no obligation on State and
local government buyers. They would have full discretion to decide if
they wish to make a supply schedule purchase, subject, however, to any
limitations that may be established under local law and procedures.
[[Page 3221]]
Defined terms and conditions. Under proposed GSAR clause 552.238-
79, which would be incorporated into covered schedule contracts of
participating contractors, a new contract would be formed when the
schedule contractor accepted an order from a State or locality.
However, with certain exceptions provided in this rule, terms and
conditions of the underlying schedule contract would be incorporated by
reference into the new contract between the State or locality and the
contractor. Buyers would not be permitted to place additional
requirements on schedule contractors.
With respect to payment, proposed GSAR clause 552.232-81 would
provide that the terms and conditions of a State's prompt payment law
apply to orders placed by eligible non-federal ordering activities. If
the ordering activity is not otherwise subject to a State prompt
payment law, the activity would be covered by the Federal Prompt
Payment Act, 31 U.S.C. 3901, et seq., as implemented in the FAR (see
subpart 32.9), in the same manner as Federal ordering activities.
The Federal government would not be liable for the performance or
nonperformance of contracts established under the authority of this
rule between schedule contractors and eligible non-federal entities.
Disputes that could not be resolved by the parties to the new contract
could be litigated in any State or Federal court with jurisdiction over
the parties, using principles of Federal procurement law and the
Uniform Commercial Code, as applicable and appropriate.
The prices of supplies and services available on schedule contracts
include an administrative fee. The fee covers the administrative costs
incurred by GSA to operate the Schedules program. The fee is
periodically adjusted as necessary to recover the cost of operating the
program.
Interested parties are encouraged to attend a public meeting that
will be held on February 4, 2003, to discuss the contents of the
proposed GSAR rule and other ideas regarding the implementation of
section 211. GSA is developing a training plan to help acclimate
parties with cooperative purchasing. Additional non-regulatory guidance
will also be developed as necessary.
Finally, GSA intends to track the level of cooperative purchasing,
including participation by small business schedule contractors. It will
also monitor the effect of cooperative purchasing on Federal
purchasing, including any changes in access for Federal customers and
the impact on GSA's ability to negotiate favorable pricing and terms
and conditions.
As required by section 211(c) of the E-Government Act, a report
will be submitted to Congress by December 31, 2004, on the
implementation and effects of cooperative purchasing.
The following statutes and Executive orders do not apply to this
rulemaking: Unfunded Mandates Reform Act of 1995; Executive Order
13175, Consultation and Coordination with Indian Tribal Governments;
and Executive Order 13132, Federalism.
B. Executive Order 12866
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.
C. Regulatory Flexibility Act
An Initial Regulatory Flexibility Analysis (IRFA) has been prepared
and submitted to the Chief Counsel for Advocacy of the Small Business
Administration. Copies of the IRFA are available from the Regulatory
Secretariat. GSA will consider comments from small entities concerning
the affected GSAR Parts in accordance with 5 U.S.C. 610. Interested
parties must submit such comments separately and should cite 5 U.S.C
601, et seq. (GSAR 2002-G505), in correspondence. The IRFA indicates
that the proposed rule will affect large and small entities including
small businesses that are awarded Schedule 70 contracts under the GSA
Federal supply schedule program; non-schedule contractors, including
small businesses, contracting with State or local governments; and
small governmental jurisdictions that will be eligible to place orders
under Schedule 70 contracts. The analysis is as follows:
Initial Regulatory Flexibility Analysis GSAR Case 2002-G505
Federal Supply Schedule Contracts--Acquisition of Information
Technology by State and Local Governments Through Federal Supply
Schedules
Implementation of Section 211, Authorization for Acquisition of
Information Technology by States and Local Governments through
Federal Supply Schedules
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.
To implement section 211, Authorization for Acquisition of
Information Technology By States and Local Governments Through
Federal Supply Schedules, of the E-Government Act of 2002 (Pub. L.
107-347). Section 211 amends section 502 of title 40, United States
Code, to authorize the Administrator to provide for use by State or
local governments of Federal Supply Schedules of the General
Services Administration for automated data processing equipment
(including firmware), software, supplies, support equipment, and
services (as contained in Federal supply classification code group
70).
2. Succinct statement of the objectives of, and legal basis for,
the proposed rule.
The proposed rule will implement section 211 of the E-Government
Act of 2002 with the objective of opening the Federal supply
schedule 70 for use by other governmental entities to enhance
intergovernmental cooperation. The goal of the new rule is to make
``government'' (considering all levels) more efficient by reducing
duplication of effort and utilizing volume purchasing techniques for
the acquisition of IT products 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 entities including
small businesses, that are awarded Schedule 70 contracts under the
GSA Federal supply schedule program; non-schedule contractors,
including small businesses, contracting with State or local
governments; and small governmental jurisdictions that will be
eligible to place orders under Schedule 70 contracts. Approximately
sixty-eight percent (2,300) of GSA Schedule 70 contractors are small
businesses. All of those small business Schedule 70 contractors will
be allowed, at the schedule contractor's option, to accept orders
from State and local governments. Obviously, the expanded authority
to order from Schedule 70 contracts could increase the sales of
small business schedule contractors. It is difficult to identify the
number of non-schedule small businesses that currently sell directly
to State and local governments. The ability of governmental entities
to use Schedule 70 may affect the competitive marketplace in which
those small businesses operate. State and local government agencies
could realize lower prices on some products and services, less
administrative burden and shortened procurement lead times. The rule
does not affect or waive State or local government preference
programs. Finally, small governmental jurisdictions will also be
affected. The 50 states, 3139 counties, 19,365 incorporated
municipalities, 30,386 minor subdivisions, 3,200 public housing
authorities, 14,178 school districts, 1,625 public educational
institutions of higher learning, and 550 Indian tribal governments
would be among those affected if they chose to order from Schedule
70 contracts. Federal supply schedule contracts are negotiated as
volume purchase agreements, with generally very favorable pricing.
The ability of small governmental entities to order from Schedule 70
holds out the potential for significant cost savings for those
organizations.
4. Description of projected reporting, recordkeeping, and other
compliance
[[Page 3222]]
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.
The proposed rule makes changes in certain provisions or clauses
in order to recognize the fact that authorized non-federal ordering
activities may place orders under the contract. The Office of
Management and Budget under the Paperwork Reduction Act have
previously approved these clauses and the changes do not impact the
information collection or recordkeeping requirements.
5. Identification, to the extent practicable, of all relevant
Federal rules that may duplicate, overlaps 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.
D. Paperwork Reduction Act
The new provision at GSAR 552.232-82, Contractor's Remittance
(Payment) Address, contains an information collection requirement that
is subject to the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). The
provision provides for the offeror to indicate the payment address to
which checks should be mailed for payment of invoices and provides for
the offeror to identify participating dealers and provide their
addresses for receiving orders and payments on behalf of the
contractor. This information is the same as is normally required in the
commercial world and does not represent a Government-unique information
collection. Therefore, the estimated burden for this clause under the
Paperwork Reduction Act is zero. GSA has a blanket approval under
control number 3090-0250 from OMB for information collections with a
zero burden estimate.
The new clause at GSAR 552.232-83, Contractor's Billing
Responsibilities, contains a recordkeeping requirement that is subject
to the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). The clause
provides for the contractor to require all dealers participating in the
performance of the contract to agree to maintain certain records on
sales made under the contract on behalf of the contractor. The records
required are the same as those normally maintained by dealers in the
commercial world and do not represent a Government-unique record
keeping requirement. Therefore, the estimated burden for this clause
under the Paperwork Reduction Act is zero. GSA has a blanket approval
under control number 3090-0250 from OMB for information collections
with a zero burden estimate.
The revised clause at GSAR 552.238-75, Price Reductions, contains
an information collection requirement that is subject to the Paperwork
Reduction Act (44 U.S.C. 3501 et seq.) that has previously been
approved by the OMB under the Paperwork Reduction Act and assigned
control number 3090-0235. The changes made to the clause by this rule
do not have an impact on the information collection requirement, which
was previously approved. Therefore, it has not been submitted to OMB
for approval under the Act.
List of Subjects in 48 CFR Parts 532, 538, and 552
Government procurement.
Dated: January 16, 2003.
David A. Drabkin,
Deputy Associate Administrator, Office of Acquisition Policy.
Therefore, GSA proposes to amend 48 CFR parts 532, 538, and 552 as
set forth below:
1. The authority citation for 48 CFR parts 532, 538, and 552
continues to read as follows:
Authority: 40 U.S.C. 486(c).
PART 532--CONTRACT FINANCING
2. Amend section 532.206 by redesignating the existing paragraph as
paragraph (a) and by adding paragraphs (b), (c), and (d) to read as
follows:
532.206 Solicitation provisions and contract clauses.
(a) * * *
(b) The contracting officer shall insert the clause at 552.232-81,
Payments by Non-Federal Ordering Activities, in solicitations and
schedule contracts for Schedule 70.
(c) The contracting officer shall insert the provision at 552.232-
82, Contractor's Remittance (Payment) Address, in solicitations and
schedule contracts for Schedule 70.
(d) The contracting officer shall insert the clause at 552.232-83,
Contractor's Billing Responsibilities, in solicitations and schedule
contracts for Schedule 70.
532.7003 [Amended]
3. Amend section 532.7003 in paragraph (a) by removing ``Payment by
Governmentwide Commercial Purchase Card'' and adding ``Payment by
Credit Card'' in its place.
PART 538--FEDERAL SUPPLY SCHEDULE CONTRACTING
538.272 [Amended]
4. Amend paragraph (a) of section 538.272 by removing
``Government'' each time it is used (twice) and adding ``eligible
ordering activities'' in its place.
5. Add subpart 538.70 to read as follows:
Subpart 538.70--Cooperative Purchasing
Sec.
538.7000 Scope of subpart.
538.7001 Definitions.
538.7002 General.
538.7003 Policy.
538.7004 Solicitation provisions and contract clauses.
538.7000 Scope of subpart.
This subpart prescribes policies and procedures that implement
statutory provisions authorizing non-federal organizations to use
Schedule 70 contracts.
538.7001 Definitions.
Ordering activity (also called ``ordering agency'' and ``ordering
office'') means an eligible ordering activity (see 552.238-78)
authorized to place orders under Federal supply schedule contracts.
Schedule 70, as used in this subpart, means schedule 70 contracts,
including products under Federal Supply Classification Code 70 of the
Federal Supply Schedule program, services under Federal Supply
Classification Code d3 (ADP & Telecommunication Services), and support
items under both of these codes.
State and local government entities, as used in this subpart, means
the States of the United States, counties, municipalities, cities,
towns, townships, tribal governments, public authorities (including
public or Indian housing agencies under the United States Housing Act
of 1937), school districts, colleges and other institutions of higher
education, council of governments (incorporated or not), regional or
interstate government entities, or any agency or instrumentality of the
preceding entities (including any local educational agency or
institution of higher education), and including legislative and
judicial departments. The term does not include contractors of, or
grantees of, State or local governments.
(1) Local educational agency has the meaning given that term in
section 8013 of the Elementary and Secondary Education Act of 1965 (20
U.S.C. 7713).
[[Page 3223]]
(2) Institution of higher education has the meaning given that term
in section 101(a) of the Higher Education Act of 1965 (20 U.S.C.
1001(a)).
(3) Tribal government means--
(i) The governing body of any Indian tribe, band, nation, or other
organized group or community located in the continental United States
(excluding the State of Alaska) that is recognized as eligible for the
special programs and services provided by the United States to Indians
because of their status as Indians; and
(ii) Any Alaska Native regional or village corporation established
pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et
seq.).
538.7002 General.
(a) 40 U.S.C. 501, (the Act) authorizes the Administrator of
General Services to procure and supply personal property and
nonpersonal services for the use of Executive agencies. Under 40 U.S.C.
502, the goods and services available to executive agencies are also
available to mixed ownership Government corporations, establishments
within the legislative or judicial branches of Government (excepting
the Senate, House of Representatives, Architect of the Capitol, and any
activities under the direction of the Architect of the Capitol), the
District of Columbia, and Qualified Non-profit Agencies.
(b) Section 211 of the E-Government Act of 2002 amends 40 U.S.C.
502 to authorize the Administrator of General Services to provide for
use of certain Federal supply schedules of the GSA by a State or local
government, which includes any State, local, regional, or tribal
government, or any instrumentality thereof (including any local
educational agency or institution of higher education).
(c) State and local governments are authorized to procure only from
the information technology Federal supply schedule (Schedule 70) as
follows:
(1) Information technology products that fall under the Federal
supply classification code group 70 (ADP equipment (including
firmware), software, supplies and support equipment);
(2) Services that fall under Federal Supply Classification Code d3
(ADP and telecommunication services); and
(3) Support items for these classifications listed in paragraphs
(c)(1) and (c)(2) of this section.
538.7003 Policy.
Preparing solicitations when schedules are open to eligible non-
federal entities. When opening Schedule 70 for use by eligible non-
federal entities, the contracting officer must make minor modifications
to certain Federal Acquisition Regulation provisions and clauses in
order to make clear distinctions between the rights and
responsibilities of the U.S. Government in its management and
regulatory capacity pursuant to which it awards schedule contracts and
fulfills associated Federal requirements versus the rights and
responsibilities of eligible ordering activities placing orders to
fulfill agency needs. Accordingly, the contracting officer is
authorized to modify the following FAR provisions/clauses to delete
``Government'' or similar language referring to the U.S. Government and
substitute ``ordering activity'' or similar language when preparing
solicitations and contracts to be awarded under Schedule 70. When such
changes are made, the word ``(VARIATION)'' shall be added at the end of
the title of the provision or clause.
(a) 52.212-4, Contract Terms and Conditions--Commercial Items.
(b) 52.216-19, Order Limitations.
(c) 52.216-22, Indefinite Quantity.
(d) 52.229-1, State and Local Taxes.
(e) 52.232-7, Payments Under Time-and-Materials and Labor-Hour
Contracts.
(f) 52.232-17, Interest.
(g) 52.232-34, Payment by Electronic Funds Transfer--Other Than
Central Contractor Registration.
(h) 52.232-36, Payment by Third Party.
(i) 52.246-2, Inspection of Supplies (Fixed Price).
(j) 52.246-4, Inspection of Services-Fixed Price.
(k) 52.246-6, Inspection-Time-and-Material and Labor-Hour.
(l) 52.246-16, Responsibility for Supplies.
(m) 52.247-1, Commercial Bill of Lading Notations.
(n) 52.247-34, F.O.B. Destination.
(o) 52.247-38, F.O.B. Inland Carrier Point of Exportation.
(p) 52.247-53, Freight Classification Description.
538.7004 Solicitation provisions and contract clauses.
(a) The contracting officer shall insert the clause at 552.238-77,
Definition (Federal Supply Schedules), in solicitations and schedule
contracts for Schedule 70.
(b) The contracting officer shall insert the clause at 552.238-78,
Eligible Ordering Activities, in solicitations and contracts for
Schedule 70.
(c) The contracting officer shall insert the clause at 552.238-79,
Use of Federal Supply Schedule Contracts by Certain Entities--
Cooperative Purchasing, in solicitations and Schedule 70 contracts.
PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
552.211-75 [Amended]
6. Amend section 552.211-75 by revising the date of the clause to
read ``(Date)'' and removing from the last sentence of the clause
``ordering agency'' and adding ``ordering activity'' in its place.
552.211-77 [Amended]
7. Amend section 552.211-77 by--
a. Revising the date of the clause to read ``(Date)'';
b. Removing from paragraph (a)(3) the word ``Government'' and
adding the words ``Ordering activity'' in its place; and
c. Removing from the introductory text of paragraph (b) the word
``Government'' and adding the words ``ordering activity'' in its place.
552.216-72 [Amended]
8. Amend section 552.216-72 by--
a. Revising the date of the clause to read ``(Date)'';
b. Removing from the last sentence of paragraph (c) of the clause
``other agencies'' and adding ``other ordering activities'' in its
place; and
c. Removing from the first sentence of paragraph (d) ``Federal
agency'' and adding ``ordering activity'' in its place, and removing
from the last sentence ``Federal agencies'' and adding ``Ordering
activities'' in its place.
552.232-8 [Amended]
9. Amend section 552.232-8 by revising the date of the clause to
read ``(Date)''; and removing paragraph (d) and redesignating
paragraphs (e), (f), and (g) as (d), (e), and (f), respectively.
10. Amend section 552.232-77 by revising the section and clause
headings and paragraphs (a) and (b); and in paragraphs (b) and (c) of
Alternate I by removing ``Governmentwide commercial purchase card'' and
adding ``credit card'' in its place. The revised text reads as follows:
552.232-77 Payment by Credit Card.
Payment by Credit Card (Date)
(a) Definitions. Credit card means any credit card used to pay
for purchases, including the Governmentwide Commercial Purchase
Card.
Governmentwide commercial purchase card means a uniquely
numbered credit card issued by a Contractor under GSA's
Governmentwide Contract for Fleet, Travel, and Purchase Card
Services to named individual Government employees or entities to pay
for official Government purchases.
[[Page 3224]]
Oral order means an order placed orally either in person or by
telephone.
(b) At the option of the ordering activity and if agreeable to
the Contractor, payments of * * * or less for oral or written orders
may be made using the credit card.
* * * * *
11. Add sections 552.232-81, 552.232-82, and 552.232-83 to read as
follows:
552.232-81 Payments by Non-Federal Ordering Activities.
As prescribed in 532.206(b), insert the following clause:
Payments by Non-Federal Ordering Activities (Date)
If eligible non-federal ordering activities are 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
activities. If eligible nonufederal ordering activities are not
subject to a State prompt payment law, the terms and conditions of
the Federal Prompt Payment Act as reflected in Federal Acquisition
Regulation clause 52.232-25, Prompt Payment, or 52.212-4, Contract
Terms and Conditions--Commercial Items, apply to such activities in
the same manner as to Federal ordering activities. (End of clause)
552.232-82 Contractor's Remittance (Payment) Address.
As prescribed in 532.206(c), insert the following provision:
Contractor's Remittance (Payment) Address (Date)
(a) The offeror shall indicate below the payment address to
which checks should be mailed for payment of proper invoices
submitted under a resultant contract.
Payment Address: ------------
(b) Offeror shall furnish by attachment to this solicitation,
the remittance (payment) addresses of all authorized participating
dealers receiving orders and accepting payment in the name of the
Contractor in care of the dealer, if different from their ordering
address(es) specified elsewhere in this solicitation. If a dealer's
ordering and remittance address differ, both must be furnished and
identified as such.
(c) All offerors are cautioned that if the remittance (payment)
address shown on an actual invoice differs from that shown in
paragraph (b) of this provision or on the attachment, the remittance
address (es) in paragraph (b) of this provision or attached will
govern. Payment to any other address will require an administrative
change to the contract.
Note: All delivery orders placed against a Federal Supply
Schedule contract are to be paid by the individual ordering activity
placing the order. Each delivery order will cite the appropriate
ordering activity payment address, and proper invoices should be
sent to that address. Proper invoices should be sent to GSA only for
orders placed by GSA. Any other ordering activity's invoices sent to
GSA will only delay your payment.
(End of provision)
552.232-83 Contractor's billing responsibilities.
As prescribed in 532.206(d), insert the following clause:
Contractor's Billing Responsibilities (Date)
(a) The Contractor is required to perform all billings made
pursuant to this contract. However, if the Contractor has dealers
that participate on the contract and the billing/payment process by
the Contractor for sales made by the dealer is a significant
administrative burden, the following alternative procedures may be
used. Where dealers are allowed by the Contractor to bill ordering
activities and accept payment in the Contractor's name, the
Contractor agrees to obtain from all dealers participating in the
performance of the contract a written agreement, which will require
dealers to--
(1) Comply with the same terms and conditions regarding prices
as the Contractor for sales made under the contract;
(2) Maintain a system of reporting sales under the contract to
the manufacturer, which includes--
(i) The date of sale;
(ii) The ordering activity to which the sale was made;
(iii) The service or product/model sold;
(iv) The quantity of each service or product/model sold;
(v) The price at which it was sold, including discounts; and
(vi) All other significant sales data.
(3) Be subject to audit by the Government, with respect to sales
made under the contract; and
(4) Place orders and accept payments in the name of the
Contractor in care of the dealer.
(b) An agreement between a Contractor and its dealers pursuant
to this procedure will not establish privity of contract between
dealers and the Government. Price reductions made by a participating
dealer on sales under this contract will result in an overall price
reduction being assessed against the Contractor as provided for in
the Price Reduction clause. (End of clause)
552.238-71 [Amended]
12. Amend section 552.238-71 by revising the date of the clause to
read ``(Date)'' and by removing from paragraph (a) ``Federal
Government'' and adding ``ordering activity'' in its place.
13. Amend section 552.238-75 by--
a. Revising the date of the clause;
b. Removing from paragraph (c)(2) ``Government'' and adding
``eligible ordering activities'' in its place;
c. Removing from the end of paragraph (d)(2) ``or''; and
d. Redesignating paragraph (d)(3) as (d)(4), and adding a new
paragraph (d)(3) to read as follows:
552.238-75 Price Reductions.
* * * * *
Price Reductions (Date)
* * * * *
(d) * * *
(3) To eligible ordering activities under this contract; or
* * * * *
(End of clause)
14. Add sections 552.238-77 through 552.238-79 to read as follows:
552.238-77 Definition (Federal Supply Schedules).
As prescribed in 538.7004(a), insert the following clause:
Definition (Federal Supply Schedules) (Date)
Ordering activity (also called ``ordering agency'' and
``ordering office'') means an eligible ordering activity (see
552.238-78) authorized to place orders under Federal supply schedule
contracts. (End of clause)
552.238-78 Eligible Ordering Activities.
As prescribed in 538.7004(b), insert the following clause:
Eligible Ordering Activities (Date)
(a) The following activities are authorized to place orders
under this contract on an optional basis:
(1) Executive agencies (as defined in 48 CFR 2.1), including
nonappropriated fund activities as prescribed in 41 CFR 101-26.000.
(2) Government contractors authorized in writing by a Federal
agency pursuant to FAR 51.1.
(3) Mixed ownership Government corporations (as defined in the
Government Corporation Control Act).
(4) Federal agencies, including establishments in the
legislative or judicial branch of Government (except the Senate, the
House of Representatives and the Architect of the Capitol and any
activities under the direction of the Architect of the Capitol).
(5) The District of Columbia.
(6) Tribal governments when authorized under 25 U.S.C. 450j(k).
(7) Qualified Nonprofit Agencies as authorized under 40 U.S.C.
502(b).
(8) Organizations, other than those identified in paragraph (b)
of this clause, authorized by GSA pursuant to statute or regulation
to use GSA as a source of supply.
(b) The following activities may place orders against Schedule
70 contracts to include Schedule 70 products (ADP equipment
(including firmware), software, supplies and support equipment;
Schedule 70 services and Schedule 70 support items), on an optional
basis; provided, the Contractor accepts order(s) from such
activities: State and local government which includes any state,
local, regional or tribal government or any instrumentality thereof
(including any local educational agency or institution of higher
education). Tribal government means the governing body of any Indian
tribe, band, nation, or other organized group or community located
in the continental United States (excluding the State of Alaska)
that is recognized as eligible for the special programs and services
provided by the
[[Page 3225]]
United States to Indians because of their status as Indians, and any
Alaska Native regional or village corporation established pursuant
to the Alaskan Native Claims Settlement Act (43 U.S.C. 1601, et
seq.). (End of clause)
552.238-79 Use of Federal Supply Schedule Contracts by Certain
Entities--Cooperative Purchasing.
As prescribed in 538.7004(c), insert the following clause:
Use of Federal Supply Schedule Contracts by Certain Entities--
Cooperative Purchasing (Date)
(a) If an entity identified in paragraph (b) of the clause at
552.238-78, Eligible Ordering Activities, elects to place a delivery
order under this contract, such order shall be subject to the
following conditions:
(1) When the Contractor accepts an order from such an entity, a
separate contract is formed which incorporates by reference all the
terms and conditions of the Schedule contract except the Disputes
clause, the patent indemnity clause, and the portion of the
Commercial Item Contract Terms and Conditions that specifies
``Compliance with laws unique to Government contracts'' (which
applies only to contracts with entities of the Executive branch of
the U.S. Government). The parties to this new contract which
incorporates the terms and conditions of the Schedule contract are
the individual ordering activity and the Contractor. The U.S.
Government shall not be liable for the performance or nonperformance
of the new contract. Disputes which cannot be resolved by the
parties to the new contract may be litigated in any State or Federal
court with jurisdiction over the parties, using principles of
Federal procurement law and the Uniform Commercial Code, as
applicable.
(2) Where contract clauses refer to action by a Contracting
Officer or a Contracting Officer of GSA that shall mean the
individual responsible for placing the order for the ordering
activity (e.g. FAR 52.212-4 at paragraph (f) and FSS clause I-FSS-
249 B.)
(3) As a condition of using this contract, eligible ordering
activities agree to abide by all terms and conditions of the
Schedule contract, except for those deleted clauses or portions of
clauses mentioned in paragraph (a)(1) of this clause. Ordering
activities may not modify, delete or add to the terms and conditions
of the Schedule contract. To the extent that orders placed by such
ordering activities may include additional terms and conditions not
found in the Schedule contract, those terms and conditions are null,
void, and of no effect. The ordering activity and the Contractor
expressly acknowledge that, in entering into an agreement for the
ordering activity to purchase goods or services from the Contractor,
neither the ordering activity nor the Contractor will look to,
primarily or in any secondary capacity, or file any claim against
the United States or any of its agencies with respect to any failure
of performance by the other party.
(4) The ordering activity is responsible for all payments due
the Contractor under the contract formed by acceptance of the
ordering activity's order, without recourse to the agency of the
U.S. Government, which awarded the Schedule contract.
(5) The Contractor is encouraged, but not obligated, to accept
orders from such entities. The Contractor may, within 5 days of
receipt of the order, decline to accept any order, for any reason.
The Contractor shall fulfill orders placed by such entities, which
are not declined within the 5-day period.
(6) The supplies or services purchased will be used for
governmental purposes only and will not be resold for personal use.
Disposal of property acquired will be in accordance with the
established procedures of the ordering activity for the disposal of
personal property.
(b) If the Schedule Contractor accepts an order from an entity
identified in paragraph (b) of the clause at 552.238-78, Eligible
Ordering Activities, the Contractor agrees to the following
conditions:
(1) The ordering activity is responsible for all payments due
the Contractor for the contract formed by acceptance of the order,
without recourse to the agency of the U.S. Government which awarded
the Schedule contract.
(2) The Contractor is encouraged, but not obligated, to accept
orders from such entities. The Contractor may, within 5 days of
receipt of the order, decline to accept any order, for any reason.
The Contractor shall fulfill orders placed by such entities which
are not declined within the 5-day period. (End of clause)
15. Amend section 552.246-73 by revising the date of the clause to
read ``(Date)); removing from paragraph (b)(1) ``Government'' and
adding ``ordering activity'' in its place; and removing from paragraph
(b)(3) ``The Government'' and adding ``the ordering activity'' in its
place.
[FR Doc. 03-1536 Filed 1-21-03; 10:37 am]