81 FR 36425 - General Services Administration Acquisition Regulation (GSAR); Purchasing by Non-Federal Entities

GENERAL SERVICES ADMINISTRATION

Federal Register Volume 81, Issue 108 (June 6, 2016)

The General Services Administration (GSA) is issuing a final rule amending the General Services Administration Acquisition Regulation (GSAR) regulation, Describing Agency Needs, to implement the Federal Supply Schedules Usage Act of 2010 (FSSUA), the Native American Housing Assistance and Self-Determination Reauthorization Act of 2008 (NAHASDA), the John Warner National Defense Authorization Act for Fiscal Year 2007 (NDAA), and the Local Preparedness Acquisition Act for Fiscal Year 2008 (LPAA). GSA is also amending the GSAR, Federal Supply Schedule Contracting, and Solicitation Provisions and Contract Clauses, in regard to this statutory implementation to clarify the application of these laws and access privileges of certain Non-Federal Entities purchasing off of Federal Supply Schedules (FSS). Additionally, prescriptions in the GSAR are amended to reflect the correct prescription numbers. This final rule also updates the web address to correct an inoperable link.

[Federal Register Volume 81, Number 108 (Monday, June 6, 2016)]
[Rules and Regulations]
[Pages 36425-36431]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-13115]


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GENERAL SERVICES ADMINISTRATION

48 CFR Parts 511, 538, and 552

[GSAR Change 73; GSAR Case 2010-G511; Docket No. 2014-0008; Sequence 
No. 1]
RIN 3090-AJ43


General Services Administration Acquisition Regulation (GSAR); 
Purchasing by Non-Federal Entities

AGENCY: Office of Government-wide Policy, 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) regulation, Describing Agency Needs, to implement the 
Federal Supply Schedules Usage Act of 2010 (FSSUA), the Native American 
Housing Assistance and Self-Determination Reauthorization Act of 2008 
(NAHASDA), the John Warner National Defense Authorization Act for 
Fiscal Year 2007 (NDAA), and the Local Preparedness Acquisition Act for 
Fiscal Year 2008 (LPAA). GSA is also amending the GSAR, Federal Supply 
Schedule Contracting, and Solicitation Provisions and Contract Clauses, 
in regard to this statutory implementation to clarify the application 
of these laws and access privileges of certain Non-Federal Entities 
purchasing off of Federal Supply Schedules (FSS). Additionally, 
prescriptions in the GSAR are amended to reflect the correct 
prescription numbers. This final rule

[[Page 36426]]

also updates the web address to correct an inoperable link.

DATES: Effective: July 6, 2016.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Ms. Dana Munson, General Services Acquisition Policy Division, GSA, by 
phone at 202-357-9652 or by email at [email protected]. For 
information pertaining to status or publication schedules, contact the 
Regulatory Secretariat at 202-501-4755. Please cite GSAR case 2010-
G511.

SUPPLEMENTARY INFORMATION: 

I. Background

    GSA published a proposed rule with a request for public comments in 
the Federal Register at 79 FR 21691 on April 17, 2014. This rule 
combined previous GSAR case 2006-G522; Federal Supply Schedule 
Contracts-Recovery Purchasing by State and Local Governments Through 
Federal Supply Schedules (Interim Rule), which published in the Federal 
Register at 72 FR 4649 on February 1, 2007 and GSAR Case 2008-G517; 
Cooperative Purchasing-Acquisition of Security and Law Enforcement 
Related Goods and Services (Schedule 84) by State and Local Governments 
Through Federal Supply Schedules (Interim Rule), which published in the 
Federal Register at 73 FR 54334 on September 9, 2008.
    This final rule amends the GSAR to implement section 2 of the FSSUA 
(Pub. L. 111-263), which added subsection 40 U.S.C. 502(e), authorizing 
the use of the Schedules by the American National Red Cross and other 
qualified organizations, which includes National Voluntary 
Organizations Active in Disaster (NVOAD); section 3 of the FSSUA, which 
added subsection 40 U.S.C. 502(f), requiring all users of the 
Schedules, including non-Federal users, to use the contracts in 
accordance with ordering guidance provided by the Administrator of 
General Services; and section 4 of the FSSUA to include additional 
purchasing authority for state or local governments.
    This final rule amends the GSAR to implement section 101 of NAHASDA 
(Pub. L. 110-411), codified at 25 U.S.C. 4111(j), which provides that 
``each Indian tribe or tribally designated housing entity shall be 
considered to be an Executive agency in carrying out any program, 
service, or other activity under this Act; and (2) each Indian tribe or 
tribally designated housing entity and each employee of the Indian 
tribe or tribally designated housing entity shall have access to 
sources of supply on the same basis as employees of an Executive 
agency.'' As such, tribes or tribally designated housing entities 
expending funds from block grants pursuant to NAHASDA may access GSA's 
sources of supply, including the Schedules, at their discretion.
    The final rule amends GSAR Parts 511, 538, and 552 to implement 
Section 833 of the NDAA, which amends 40 U.S.C. 502(d)(1) to authorize 
the Administrator of General Services to provide to state or local 
governments the use of GSA's Schedules for the purchase of goods or 
services to be used to facilitate 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 to facilitate 
recovery from terrorism or nuclear, biological, chemical, or 
radiological attack.
    This final rule amends the GSAR to further implement section 833, 
which also amends 40 U.S.C. 502(d)(2) to require the Secretary of 
Homeland Security to determine which goods and services qualify before 
the Administrator provides for the use of GSA's Schedules. House Report 
109-452 of the Committee on Armed Services indicates that section 833 
(referred to in the House Report as section 823), builds on the 
implementation of the Cooperative Purchasing Program authorized in 
Section 211 of the E-Government Act of 2002, which permitted state or 
local governments to access GSA's information technology schedule, 
known as Schedule 70.
    This final rule amends the GSAR to implement the LPAA, which 
amended 40 U.S.C. 502(c), by authorizing the Administrator of General 
Services to provide to state or local governments the use of GSA's 
Schedules for the acquisition of law enforcement, security, and certain 
other related items.
    The prescriptions at GSAR 552.211-85 through 89 are incorrectly 
numbered. This final rule reflects the correct prescriptions for GSAR 
clauses 552.211-85 through 89. This final rule also updates the web 
address in GSAR clause 552.211-89(d) to correct an inoperable link.
    The authority granted under FSSUA is available for use on a 
voluntary (i.e., non-mandatory) basis. In other words, businesses with 
Schedule contracts have the option of deciding whether they will accept 
orders placed by state or local governments, the American National Red 
Cross, or other qualified organizations.
    All users of GSA's Schedules, including non-Federal users, shall 
use the Schedules in accordance with the ordering guidance provided by 
the Administrator of General Services. GSA encourages non-Federal users 
to follow the Schedule Ordering Procedures set forth in FAR subpart 
8.4, but they may use different established competitive ordering 
procedures if such procedures are needed to satisfy their state and 
local acquisition regulations and/or organizational policies.
    The non-Federal ordering activity is responsible for ensuring that 
only authorized representatives of its organization place orders and 
that goods or services ordered are used only for the purposes 
authorized. Existing Schedule contracts may be modified only by mutual 
agreement of the parties. After an existing contract has been modified, 
a Schedule contractor still retains the right to decline orders by non-
Federal entities on a case-by-case basis. This applies to future 
Schedule contractors, as well. Schedule contractors may decline any 
order from entities outside the Executive Branch (see GSAR 552.238-78). 
Similarly, the rule places no obligation on non-Federal buyers to use 
Schedule contracts. They will have full discretion to decide if they 
wish to make a Schedule purchase, subject however, to any limitations 
that may be established under state and local laws or organizational 
policies.
    The Federal Government will not be liable for the performance or 
nonperformance of orders established under the authority of this rule 
between Schedule contractors and eligible non-Federal entities. 
Disputes that cannot be resolved by the parties to the new contract can 
be litigated in any court of competent jurisdiction over the parties.
    The prices of supplies and services available on Schedule contracts 
include an industrial funding fee (IFF). The fee covers the 
administrative costs incurred by GSA to operate the Schedules program. 
The fee may be periodically adjusted as necessary to recover the cost 
of operating the program.
    Two respondents submitted comments in response to the proposed 
rule. These comments, along with comments received from the previously 
published interim rules, are addressed in the Discussion and Analysis 
Section.

II. Discussion and Analysis

    The General Services Administration has reviewed the comments 
received in response to the proposed rule and the previously published 
interim rules in the development of the final rule. Comments are 
grouped into categories in order to provide clarification and to better 
respond to the issues raised. A discussion of all comments received and 
the changes made to the rule as a result

[[Page 36427]]

of those comments is provided as follows:
    Comment: Asked GSA to ``clarify whether the changes in the rule 
apply to the Federal Supply Schedule functions the General Services 
Administration has delegated to the U.S. Department of Veterans 
Affairs?''
    Response: Yes, the changes apply to all Federal Supply Schedules, 
including those managed by the Department of Veterans Affairs. Vendors 
may voluntarily sell to non-Federal entities under their Schedule, in 
accordance with clause 552.238-78 and acceptance of orders from non-
Federal entities is not mandatory. No changes were made to the GSAR 
text as a result of this comment.
    Comment: Was directed at United States Code definitions and FAR 
references.
    The respondent suggested the following changes to the GSAR text 
that included changing definitions to match definitions and terms in 
various parts of the Federal Acquisition Regulation (FAR) and the 
United States Code:
     Delete the terms ``Preparedness, Recovery, Relief, and 
Response'' found under Subpart 538.7001 Definitions and permit the 
definitions and legal intentions set forth throughout the FAR, in 
accordance with the Robert T. Stafford Disaster Relief and Emergency 
Assistance Act (42 U.S.C. 5121, et seq.) to prevail.
     Replace references to Public Law with applicable ``40 
U.S.C. 502'' authority;
     Remove the ``Disaster Recovery Purchasing'' program from 
eLibrary and advise contractors to register in System Award Management 
(SAM) for the ``Disaster Response Registry;'' and
     Mandate all non-federal entities use GSA Advantage! in 
order to track and monitor compliance with IFF and to ensure compliance 
with 40 U.S.C. 502 authority.
    Response: The comments appear to erroneously conflate Federal 
acquisitions with the activities governed by this final rule. The parts 
of the FAR cited in the comments pertain to acquisitions by Federal 
agencies, and fall under a particular statutory authority, specifically 
the Defense Priorities and Allocations System (DPAS). That is separate 
from the changes in this rule, which pertains to the ability of non-
Federal entities to access GSA sources of supply. These non-Federal 
access programs are outside of the scope of and not directly related to 
defense contracting under DPAS, nor are they related to Federal 
emergency contracting. The GSA non-Federal entity programs are all 
separate authorities, controlled by statute, that do not conflict or 
overlap with other Federal, disaster-related, programs. Under these 
authorities, non-Federal entities have optional access to GSA sources 
of supply, under the authorized scope. Therefore, purchases made by 
non-Federal entities are not subject to the statutes and FAR 
requirements cited in the comments. Thus, insofar as the comments 
appear to misinterpret the scope and effect of the rule, and the 
statutory authorities that underlie it, GSA does not concur with the 
recommendations contained in the comments. No change was made as a 
result of this comment.
    Comment: Asked if the IFF paid by non-Federal entities is tracked 
separately from the IFF paid by Federal entities.
    Response: The IFF paid by non-Federal entities is not tracked 
separately from the IFF paid by Federal entities. Sales are reported 
quarterly by the vendor and are tracked by Special Item Number (SIN) 
and Schedule.
    The IFF is tracked separately for sales under the Disaster 
Purchasing and Cooperative Purchasing Programs. However, it is not 
tracked separately for other special programs. The Red Cross and other 
qualified organization sales are reported under Federal sales. GSA is 
able to track these sales, when made through GSA eTools.
    GSA Industrial Operating Analysts and Administrative Contracting 
Officers work with the GSA vendor community to ensure that all GSA 
vendors, including authorized non-Federal Entities, are aware of the 
reporting requirements under the separate programs and that orders are 
properly tracked and reported on the quarterly 72A forms. No change was 
made as a result of this comment.
    Comment: Raised a number of issues about GSA eTools and how orders 
under this rule are tracked via the eTools.
    Response: GSA eTools web portal provides a one-stop resource where 
federal and non-federal customers learn about GSA products and 
services.
    GSA eTools, GSA Advantage![supreg] and eLibrary, provide a list of 
current contractors, products, and services available to eligible non-
Federal entities. Schedule contractors that have opted to sell under 
these programs have agreed to do so at the contract level and their 
agreement is noted in the eTools with a ``COOPPURCH'' or 
``DISASTRECOV'' icon.
    When requested, buyers only see contractors that have agreed to 
participate in the program. This information displays into GSA 
Advantage![supreg] and its component system eBuy, which facilitates the 
request for submission of quotations for commercial products and 
services.
    Use of eTools is not mandatory for non-Federal entities and 
requiring mandatory use of eTools, as suggested in the comments, would 
be a barrier to use for some state and local government entities. Some 
entities require use of their own systems to process and execute orders 
and some entities do not support use of credit cards. Mandating the use 
of a system, like GSA Advantage![supreg], that requires credit cards, 
would prohibit some legally authorized users from accessing these 
contracts.
    Comment: Suggested that ordering procedures require a FEMA disaster 
declaration number to place an order.
    Response: Such a requirement would not take into account a non-
Federal entity's ability to purchase for preparation of a disaster, 
which necessarily pre-dates the declaration of an emergency. However, 
all entities placing orders under the Disaster Purchasing Program must 
include the mandatory order language on the purchase order to confirm 
that the order is being placed under GSA's Disaster Purchasing Program 
and under the appropriate scope. No change was made as a result of this 
comment.
    Comment: Included a number of statements and questions regarding 
the 1122 Program and Wildland Fire Program.
    Response: These programs are outside the scope of the proposed rule 
because the laws being implemented do not cover these GSA Schedules. 
Therefore, these comments are not addressed. Information on these 
programs can be found here: www.gsa.gov/1122program and www.gsa.gov/fireprogram.
    Comment: Suggested editorial updates to sections and subparts of 
the GSAR to address the deletion of GSAR 538.71.
    Response: The GSAR text of the final rule is amended to reflect the 
deletion of GSAR 538.71, Submission and Distribution of Authorized FSS 
Schedule Pricelists by removing and reserving section 552.238-76, 
Definition (Federal Supply Schedules)--Recovery Purchasing.
    Comment: Expressed concern in regards to the Recovery Purchasing 
program on topics such as advanced purchasing or qualified products.
    Response: These questions are directed towards a component of the 
program that is no longer relevant since the Federal Supply Schedules 
Usage Act dictates that purchasing may be made in support of 
preparation for disasters in addition to disaster recovery.

[[Page 36428]]

    Comment: Opposes the inclusion of the Veteran Administration 
pharmaceutical contracts because the contracts are the only ones that 
are set via statutorily mandated pricing system.
    Response: The statutes implemented by this rule do not exclude the 
ability for certain non-federal entities to have access to VA 
pharmaceutical contracts. Vendors may voluntarily sell to non-Federal 
entities under their Schedule, in accordance with GSAR clause 552.238-
78. Participation in the program and acceptance of orders from non-
Federal entities is not mandatory.
    Comment: The commenter is opposed to GSA allowing local and state 
governments to purchase directly off the schedules for competitive and 
economic reasons.
    Response: The Statutes cited in this rule allow access to the 
Schedules. Schedules access is a direct relationship between the 
ordering entity and the Schedule vendor.

III. Applicability

    This rule provides certain Non-Federal Entities with access to GSA 
Schedules under the following conditions and authorities:
    1. Disaster Purchasing-Authorized under Section 833 of the John 
Warner National Defense Authorization Act for Fiscal Year 2007 (NDAA) 
(Pub. L. 109-364) and the Federal Supply Schedules Usage Act of 2010 
(FSSUA) (Pub. L. 111-263), provides State and local use of Federal 
Supply Schedules for the purchase of goods or services to be used to 
facilitate 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 to facilitate recovery from terrorism 
or nuclear, biological, chemical, or radiological attack.
    2. Cooperative Purchasing--Authorized previously under the 
eGovernment Act of 2002 (Pub. L. 107-347), expanded here under the 
Local Preparedness Acquisition Act of 2008 (Pub. L. 110-248), provides 
State and local government use of Federal Supply Schedules for the 
acquisition of law enforcement, security, and certain other related 
items by State and local governments. This expansion is limited to 
Schedule 84, Total Solutions for Law Enforcement, Security, facilities 
management, fire, rescue, marine craft, and Emergency/Disaster 
Response. Schedule 70 for Information Technology products and Services 
was previously authorized under this program.
    3. American National Red Cross--Authorized under the Federal Supply 
Schedules Usage Act of 2010 (Pub. L. 111-263), provides the American 
National Red Cross access to Federal Supply Schedules, when purchasing 
in furtherance of the purposes of the American National Red Cross set 
forth in section 300102 of title 36, United States Code.
    4. Other Qualified Organizations--Authorized under the Federal 
Supply Schedules Usage Act of 2010 (Pub. L. 111-263), provides access 
to Federal Supply Schedules for ``other qualified organizations'' when 
purchasing 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 (FEMA). 
GSA, in consultation with FEMA has determined that, at this time, the 
National Voluntary Organizations Active in Disaster (NVOAD), may 
utilize Federal Supply Schedules in furtherance of purposes determined 
to be appropriate to facilitate emergency preparedness and disaster 
relief.
    5. Tribal Government Access to Schedules--authorized under Native 
American Housing Assistance and Self-Determination Reauthorization Act 
of 2008 (NAHASDA) (Pub. L. 104-330), provides that ``each Indian tribe 
or tribally designated housing entity shall be considered to be an 
Executive agency in carrying out any program, service, or other 
activity under this Act; and (2) each Indian tribe or tribally 
designated housing entity and each employee of the Indian tribe or 
tribally designated housing entity shall have access to sources of 
supply on the same basis as employees of an Executive agency.'' As 
such, tribes or tribally designated housing entities expending funds 
from block grants pursuant to NAHASDA may access GSA's sources of 
supply, including the Schedules, at their discretion. This Final Rule 
does not grant any additional authority for non-Federal entities to use 
Federal Supply Schedules other than those listed above.

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 is not 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. This rule is not a major rule 
under 5 U.S.C. 804.

V. Regulatory Flexibility Act

    The change may have a significant economic impact on a substantial 
number of small entities within the meaning of the Regulatory 
Flexibility Act 5 U.S.C. 601, et seq., because implementing the 
authorities enumerated herein will expand or add the ability for 
additional other qualified organizations to procure from GSA's Schedule 
contracts as identified in the relevant laws. For small businesses that 
hold a Schedule contract their sales may increase for orders placed, by 
authorized non-federal entities, in order to support disaster 
preparation and response.
    GSA has prepared a Final Regulatory Flexibility Analysis (FRFA) 
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. 
The FRFA is summarized as follows:

    The General Services Administration (GSA) is issuing a final 
rule amending the General Services Administration Acquisition 
Regulation (GSAR) Part 511, Describing Agency Needs, to implement 
the Federal Supply Schedules Usage Act of 2010 (FSSUA), the Native 
American Housing Assistance and Self-Determination Reauthorization 
Act of 2008 (NAHASDA), the John Warner National Defense 
Authorization Act for Fiscal Year 2007 (NDAA), and the Local 
Preparedness Acquisition Act for Fiscal Year 2008 (LPAA), to provide 
non-Federal entity access to GSA's Federal Supply Schedules 
(Schedules).
    Prior to the Federal Supply Schedules Usage Act of 2010 
(hereinafter, ``Act''), state and local governments and the American 
National Red Cross were authorized to procure from Schedules, but 
only for limited purposes and specific scopes. ''Other qualified 
organizations'' were not previously authorized to procure from 
Schedules contracts.
    Under the Act, the scope of authorized users of FSS contracts is 
expanded to include ``other qualified organizations,'' which is in 
addition to the already authorized state and local governments and 
the American National Red Cross (ANRC). Access to Schedules for each 
of these entities varies. The ANRC may access Schedules in support 
of their Federal charter; state and local governments may use the 
Schedules to prepare, respond, and recover from major disasters; and 
``other qualified organizations'' may use the Schedules for 
emergency preparedness and disaster relief.
    It should be noted that this is an optional program under the 
FSS program. This final rule applies to all FSS contractors that 
agree to sell goods and services to these eligible entities, under 
the appropriate scope of use. A modification will be issued 
outlining if a

[[Page 36429]]

contractor wishes to sell to each of the 3 user groups, under the 
assigned scope. There are no additional compliance requirements for 
contractors than what is already required; therefore, there is no 
additional cost to small business if they decide to participate.
    Further, the final rule amends the GSAR to implement section 101 
of NAHASDA, codified at 25 U.S.C. 4111(j), which provides that 
``each Indian tribe or tribally designated housing entity shall be 
considered to be an Executive agency in carrying out any program, 
service, or other activity under this Act; and (2) each Indian tribe 
or tribally designated housing entity and each employee of the 
Indian tribe or tribally designated housing entity shall have access 
to sources of supply on the same basis as employees of an Executive 
agency.'' As such, tribes or tribally designated housing entities 
expending funds from block grants pursuant to NAHASDA may access 
GSA's sources of supply, including the Schedules, at their 
discretion.
    Additionally, the final rule amends the GSAR to implement 
Section 833 of the NDAA, which amends 40 U.S.C. 502(d)(1) to 
authorize the Administrator of General Services to provide to state 
or local governments the use of GSA's Schedules for the purchase of 
goods or services to be used to facilitate 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 to facilitate recovery from terrorism or nuclear, 
biological, chemical, or radiological attack.
    Finally, the final rule amends the GSAR to implement the LPAA, 
which amended 40 U.S.C. 502(c), by authorizing the Administrator of 
General Services to provide to state or local governments the use of 
GSA's Schedules for the acquisition of law enforcement, security, 
and certain other related items.

    The Regulatory Secretariat Division has submitted a copy of the 
FRFA to the Chief Counsel for Advocacy of the Small Business 
Administration. A copy of the FRFA may be obtained from the Regulatory 
Secretariat Division.

VI. Paperwork Reduction Act

    The final rule does not contain any information collection 
requirements that require 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 511, 538 and 552

    Government procurement.

    Dated: May 27, 2016
Jeffrey A. Koses,
Senior Procurement Executive, Office of Acquisition Policy, Office of 
Government-wide Policy.
    Therefore, GSA amends 48 CFR parts 511, 538, and 552 as set forth 
below:

0
1. The authority citation for 48 CFR parts 511, 538, and 552 continues 
to read as follows:

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

PART 511--DESCRIBING AGENCY NEEDS

0
2. Amend section 511.204 by revising paragraphs (b)(2) and (c) to read 
as follows:


511.204  Solicitation provisions and contract clauses.

* * * * *
    (b) * * *
    (2) The contracting officer shall include the clause at 552.211-75, 
Preservation, Packaging, and Packing, in solicitations and contracts 
for supplies expected to exceed the simplified acquisition threshold. 
The contracting officer may also include the clause in contracts 
estimated to be at or below the simplified acquisition threshold when 
appropriate. The contracting officer shall use Alternate I in 
solicitations and contracts for all Federal Supply Schedule Contracts.
* * * * *
    (c) Supply contracts. The contracting officer shall include the 
clause at 552.211-77, Packing List, in solicitations and contracts for 
supplies, including purchases over the micropurchase threshold. Use 
Alternate I in solicitations and contracts for all Federal Supply 
Schedule Contracts.

PART 538--FEDERAL SUPPLY SCHEDULE CONTRACTING

0
3. Amend section 538.273 by revising paragraphs (a)(2) and (b)(2) to 
read as follows:
    (a) * * *
    (2) 552.238-71, Submission and Distribution of Authorized FSS 
Schedule Pricelists.
* * * * *
    (b) * * *
    (2) 552.238-75, Price Reductions.
* * * * *

Subpart 538.70--Purchasing by Non-Federal Entities

0
4. Revise the heading of subpart 538.70 to read as set forth above.

0
5. Amend section 538.7000 by adding paragraph (d) to read as follows:


538.7000  Scope of subpart.

* * * * *
    (d) Other Federal Supply Schedules as authorized in this subpart.

0
6. Amend section 538.7001 by adding in alphabetical order, the 
definitions ``Preparedness'', ``Recovery'', ``Relief'', and 
``Response'' to read as follows:


538.7001  Definitions.

* * * * *
    Preparedness means actions that may include, but are not limited to 
planning, resourcing, training, exercising, and organizing to build, 
sustain, and improve operational disaster response capabilities. 
Preparedness also includes the process of identifying the personnel, 
training, and equipment needed for a wide range of potential incidents, 
and developing jurisdiction-specific plans for delivering capabilities 
when needed for an incident.
    Recovery means actions including, but not limited to, the 
development, coordination, and execution of service- and site-
restoration plans; the reconstitution of Government operations and 
services; individual, private-sector, nongovernmental, and public-
assistance programs to provide housing and to promote restoration; 
long-term care and treatment of affected persons; additional measures 
for social, political, environmental, and economic restoration; 
evaluation of the incident to identify lessons learned; post-incident 
reporting; and development of initiatives to mitigate the effects of 
future incidents.
    Relief means disaster ``response'' and ``recovery.'' Please see the 
full definitions for these terms in this section.
    Response means immediate actions taken during a disaster, or in its 
immediate 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 support short-term 
recovery.
* * * * *

0
7. Amend section 538.7002 by revising paragraph (d); and adding 
paragraphs (e) through (g) to read as follows:


538.7002  General.

* * * * *
    (d) Public Law 109-364, the John Warner National Defense 
Authorization Act for Fiscal Year 2007 authorizing state and local 
governments, to use Federal Supply Schedule contracts to purchase 
products and services to be used to facilitate 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 to facilitate for recovery from terrorism or nuclear, biological, 
chemical, or radiological attack. Public Law 111-263, the Federal 
Supply Schedules Usage Act of 2010 authorizing state and local 
governments to use Federal Supply Schedule contracts to purchase 
products and services to be used to facilitate disaster preparedness or 
response.

[[Page 36430]]

    (e) Public Law 111-263, the Federal Supply Schedules Usage Act of 
2010, authorizes the American National Red Cross to use Federal Supply 
Schedule contracts to purchase goods or services to be used in 
furtherance of its purposes as set forth in its federal charter (36 
U.S.C. 300102).
    (f) Public Law 111-263, the Federal Supply Schedules Usage Act of 
2010, authorizes other qualified organizations to use Federal Supply 
Schedule contracts to purchase products and services 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. Other 
qualified organizations must meet the requirements of 42 U.S.C. 5152.
    (g) A listing of the participating contractors and SINs for the 
goods and services that are available under these authorized Federal 
Supply Schedules, is available in GSA's e-Library at www.gsa.gov/elibrary.

0
8. Amend section 538.7003 by revising the introductory text to read as 
follows:


538.7003  Policy.

    Preparing solicitations when schedules are open to eligible non-
federal entities. When opening authorized Federal Supply Schedules for 
use by eligible non-federal entities, the contracting officer must make 
minor modifications to certain Federal Acquisition Regulation and GSAM 
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 authorized Federal 
Supply Schedules. When such changes are made, the word ``(DEVIATION)'' 
shall be added at the end of the title of the provision or clause. 
These clauses include but are not limited to:
* * * * *

0
9. Revise section 538.7004 to read as follows:


538.7004  Solicitation provisions and contract clauses.

    (a) The contracting officer shall insert the clause at 552.238-77, 
Definition (Federal Supply Schedules)-Non-Federal Entity in 
solicitations and contracts for all Federal Supply Schedules.
    (b) The contracting officer shall insert the clause at 552.238-78, 
Scope of Contract (Eligible Ordering Activities), in solicitations and 
contracts for all Federal Supply Schedules.
    (c) The contracting officer shall insert the clause at 552.238-79, 
Use of Federal Supply Schedule Contracts by Non-Federal Entities, in 
solicitations and contracts for all Federal Supply Schedules.
    (d) See 552.101-70 for authorized FAR deviations.

Subpart 538.71--[Removed and Reserved]

0
10. Remove and reserve subpart 538.71.

PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


552.211-85  [Amended]

0
11. Amend section 552.211-85 by removing from the introductory text 
``511.204(b)(5)'' and adding ``511.204(b)(4)'' in its place.


552.211-86  [Amended]

0
12. Amend section 552.211-86 by removing from the introductory text 
``511.204(b)(6)'' and adding ``511.204(b)(5)'' in its place.


552.211-87  [Amended]

0
13. Amend section 552.211-87 by removing from the introductory text 
``511.204(b)(7)'' and adding ``511.204(b)(6)'' in its place.


552.211-88  [Amended]

0
14. Amend section 552.211-88 by removing from the introductory text 
``511.204(b)(8)'' and adding ``511.204(b)(7)'' in its place.

0
15. Amend section 552.211-89 by:
0
a. Removing from the introductory text ``511.204(b)(4)'' and adding 
``511.204(b)(8)'' in its place;
0
b. Revising the date of the clause; and
0
c. Removing from paragraph (d) ``http://www.dla.mil/j-3/j-3311/DLAD/
rev5.htm'' and adding ``http://farsite.hill.af.mil/archive/Dlad/Rev5/
PART47.htm'' in its place.
    The revision reads as follows:


552.211-89  Non-manufactured wood packaging material for export.

* * * * *

Non-Manufactured Wood Packaging Material for Export (JUL 2016)

* * * * *

0
16. Amend section 552.238-71 by:
0
a. Revising the date of the clause;
0
b. Removing from paragraph (a) ``Federal Government'' and adding 
``ordering activity'' in its place; and
0
c. Removing Alternate I.
    The revision reads as follows:


552.238-71  Submission and Distribution of Authorized FSS Schedule 
Pricelists.

* * * * *

Submission and Distribution of Authorized FSS Schedule Pricelists (JUL 
2016)

* * * * *

0
17. Amend section 552.238-75 by:
0
a. Revising the date of the clause and paragraph (d)(3); and
0
b. Removing Alternate I.
    The revisions read as follows:


552.238-75  Price Reductions.

* * * * *

Price Reductions (JUL 2016)

* * * * *
    (d) * * *
    (3) Made to Eligible Ordering Activities identified in GSAR clause 
552.238-78 when the order is placed under this contract (and the 
Eligible Ordering Activities identified in GSAR clause 552.238-78 is 
the agreed upon customer or category of customer that is the basis of 
award); or
* * * * *


552.238-76  [Removed and Reserved]

0
18. Remove and reserve section 552.238-76.
0
19. Amend section 552.238-77 by:
0
a. Revising the section and clause headings; and
0
b. Removing from the definition ``Ordering activity'' the phrase ``(see 
552.238-78)'' and adding ``(see 552.238-78),'' in its place.
    The revisions read as follows:


552.238-77  Definition (Federal Supply Schedules)--Non-Federal Entity.

* * * * *

Definition (Federal Supply Schedules)--Non-Federal Entity (JUL 2016)

* * * * *
0
20. Amend section 552.238.78 by--
0
a. Revising the date of the clause;
0
b. Redesignating paragraphs (a)(7) and (8) as paragraphs (a)(8) and 
(9), respectively;
0
c. Adding a new paragraph (a)(7);
0
d. Revising paragraph (d);
0
e. Adding paragraph (h); and
0
f. Removing Alternate I.
    The revisions and additions read as follows:

[[Page 36431]]

552.238-78  Scope of Contract (Eligible Ordering Activities).

* * * * *

Scope of Contract (Eligible Ordering Activities) (JUL 2016)

    (a) * * *
    (7) Tribes or tribally designated housing entities pursuant to 25 
U.S.C. 4111(j);
* * * * *
    (d) The following activities may place orders against Schedule 70 
contracts:
    (1) State and local government may place orders against Schedule 70 
contracts, and Consolidated Schedule contracts containing information 
technology Special Item Numbers, and Schedule 84 contracts, on an 
optional basis; PROVIDED, the Contractor accepts order(s) from such 
activities;
    (2) The American National Red Cross may place orders against 
Federal Supply Schedules for products and services in furtherance of 
the purposes set forth in its Federal charter (36 U.S.C. 300102); 
PROVIDED, the Contractor accepts order(s) from the American National 
Red Cross; and
    (3) Other qualified organizations, as defined in section 309 of the 
Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 
U.S.C. 5152), may place orders against Federal Supply Schedules for 
products and services 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; PROVIDED, the 
Contractor accepts order(s) from such activities.
    (4) State and local governments may place orders against Federal 
Supply Schedules for goods or services determined by the Secretary of 
Homeland Security to facilitate 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.) to facilitate 
disaster preparedness or response, or to facilitate recovery from 
terrorism or nuclear, biological, chemical, or radiological attack; 
PROVIDED, the Contractor accepts order(s) from such activities.
* * * * *
    (h) All users of GSA's Federal Supply Schedules, including non-
Federal users, shall use the schedules in accordance with the ordering 
guidance provided by the Administrator of General Services. GSA 
encourages non-Federal users to follow the Schedule Ordering Procedures 
set forth in the Federal Acquisition Regulation (FAR) 8.4, but they may 
use different established competitive ordering procedures if such 
procedures are needed to satisfy their state and local acquisition 
regulations and/or organizational policies.

0
21. Amend section 552.238-79 by revising the section and clause 
headings to read as follows:


552.238-79  Use of Federal Supply Schedule Contracts by Non-Federal 
Entities

* * * * *

Use of Federal Supply Schedule Contracts by Non-Federal Entities (JUL 
2016)

* * * * *


552.238-80  [Removed and Reserved]

0
22. Remove and reserve section 552.238-80.

[FR Doc. 2016-13115 Filed 6-3-16; 8:45 am]
 BILLING CODE 6820-61-P