[Federal Register Volume 79, Number 73 (Wednesday, April 16, 2014)]
[Rules and Regulations]
[Pages 21400-21402]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-08659]
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GENERAL SERVICES ADMINISTRATION
48 CFR Part 552
[(Change 57); GSAR Case 2012-G503 Docket No. 2012-0018; Sequence No. 1]
RIN 3090-AJ36
General Services Administration Acquisition Regulation; (GSAR);
Industrial Funding Fee (IFF) and Sales Reporting
AGENCIES: Office of Acquisition Policy, General Services
Administration (GSA).
ACTION: Final rule.
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SUMMARY: The General Services Administration (GSA) is issuing a final
rule amending the General Services Administration Acquisition
Regulation (GSAR) to address the use of the Industrial Funding Fee
(IFF) collected under the Multiple Award Schedules (MAS) Program. The
rule reflects GSA's current use of the Industrial Funding Fee, which
includes uses specified in the Acquisition Services Fund, and which
extend beyond the purposes currently stated in the GSAR.
DATES: Effective: May 16, 2014.
FOR FURTHER INFORMATION CONTACT: Ms. Dana Munson, General Services
Acquisition Policy Division, GSA, 202-357-9652, or via email at
[email protected], for clarification of content. For information
pertaining to status or publication schedules, contact the Regulatory
Secretariat at 202-501-4755. Please cite GSAR case 2012-G503.
SUPPLEMENTARY INFORMATION:
A. Background
GSA published a proposed rule with a request for public comments in
the Federal Register at 77 FR 76446 on December 28, 2012, to address
use of revised GSAR clause 552.238-74 Industrial Funding Fee (IFF)
under the Multiple Award Schedules (MAS) Program, and reinstatement
with changes of the information collection requirement concerning OMB
Control Number 3090-0121, Industrial Funding Fee (IFF) and Sales
Reporting. One comment was received.
In response, GSA published a second Information Collection notice
request for public comments in the Federal Register at 78 FR 27239, on
May 9, 2013 in which the comment from the first notice was addressed
and to receive additional comments on the collection. One comment
pertaining to the rule was received and is addressed in the Discussion
and Analysis section of this rule. Another comment was received
pertaining to the collection and is addressed in the Paperwork
Reduction Act section of this rule.
The proposed rule sought to amend the GSAR to update the text
addressing GSAR part 552, Solicitation Provisions and Contract Clauses
at 552.238-74 Industrial Funding Fee (IFF) and Sales Reporting. This
change will improve the Multiple Award Schedules (MAS) Program by
facilitating transparency and open government, and more accurately
define the current MAS Program operations while simultaneously
complying with the recommendations of the GSA Office of Inspector
General (OIG).
Currently, the language contained in the IFF Clause under GSAR
552.238-74(b)(2) states ``. . . The IFF reimburses the Federal Supply
Service for the costs of operating the Federal Supply Schedules Program
and recoups its operating costs from ordering activities.'' The GSA
OIG's Audit of the Multiple Award Schedule Program Industrial Funding
Fee (Report Number A090256/Q/A/P12003), dated February 3, 2012 (the
``OIG Report''), recommended that GSA further improve transparency in
the MAS Program by informing MAS customers that the IFF may be used to
fund other eligible GSA
[[Page 21401]]
programs besides those that manage the MAS program. As a result of the
OIG recommendation, GSA is amending the current language at GSAR clause
552.238-74 Industrial Funding Fee (IFF) and Sales Reporting to include
the expanded role of net revenue generated by IFF payments.
In addition, the OIG Report cited the GSA Modernization Act (Pub.
L. 109-313, 120 Stat. 1734 (2006), codified in relevant part at 40
U.S.C. 321), as the authority under which net operating revenue
generated by the IFF can be used for more than simple recoupment of
costs to run the MAS Program.
The GSA Modernization Act combined the General Supply Fund and the
Information Technology Fund which were formerly separate, into one
fund, the Acquisition Services Fund.
40 U.S.C. 321, among other things, grants the GSA Administrator
latitude in determining how to use net operating revenue from the MAS
Program, including funding other Federal Acquisition Services (FAS)
programs or funding initiatives benefitting other FAS programs.
Essentially, use of MAS program revenue may extend beyond mere MAS
Program cost recovery. In the past, GSA did not convey this information
directly to MAS Program customers.
Additionally, GSA is making administrative changes by updating all
references to ``Federal Supply Service'' or ``FSS'' in the IFF clause
to reflect the current organizational name: ``Federal Acquisition
Services'' or ``FAS'', as appropriate.
This final rule complies with the recommendations of the GSA OIG,
and facilitates transparency and open government, as well as more
accurately reflects the current MAS Program relative to use of the IFF.
This final rule is separate and apart from any agency action that may
change or alter the IFF rate or fee structure.
II. Discussion and Analysis
As a result of the publication of the proposed rule, one public
comment was received and is addressed in this rule. Another public
comment was received pertaining to the information collection and is
addressed directly in section V. Paperwork Reduction Act of this rule.
GSA has reviewed the comments in the development of this final rule and
offers the following responses:
Comment: The commenter expressed two concerns about the collection
requirements of IFF reporting for Transportation Service Providers
(TSPs). The commenter believes the scope of the information collection
requirement is inadequately defined and measured. This comment is
addressed in section V. Paperwork Reduction Act of this rule.
Additionally, the commenter expressed that the information sought
by GSA is in excess of what is necessary for the Agency to run its
Freight Transportation Management Program.
Response: The IFF represents a percentage of the total quarterly
sales reported under the Multiple Award Schedules FSS Program. The IFF
reimburses FSS for the costs of operating the FSS Program and enables
FSS to recoup its operating costs from ordering activities. Although
the General Freight Traffic Management Program also makes reference to
an ``Industrial Funding Fee'' in its Request for Offers, that IFF is
separate and distinct from the Industrial Funding Fee referenced in
this case, which only relates to GSA's Multiple Award Schedules
Program. As the commenter correctly states, the IFF referenced under
the General Freight Traffic Management Program does not apply to MAS,
and thus this change is outside the scope of the General Freight
Traffic Management Program.
Therefore, no changes were made to the final rule as a result of
the comment received.
III. 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.
IV. Regulatory Flexibility Act
The General Services Administration certifies that this final rule
will not have a significant economic impact on a substantial number of
small entities within the meaning of the Regulatory Flexibility Act, 5
U.S.C. 601, et seq., because the final rule clarifies GSA's use of the
IFF collected under the MAS Program, consistent with the GSA
Modernization Act and the recommendation of the GSA OIG. This change
will not only implement the OIG's recommendations but will also benefit
the agencies, GSA, FAS, and the MAS Program by facilitating
transparency, accountability, and clarity about the MAS policy and
operational procedures. This rule does not require implementation of
any new changes on the part of businesses, large or small doing
business with GSA. Therefore, an Initial Regulatory Flexibility
Analysis has not been performed.
V. Paperwork Reduction Act
Discussion and Analysis
One respondent submitted a comment on the second information
collection notice. The analysis of the public comment is summarized as
follows:
Comment: The commenter felt that the Agency's estimate did not
accurately reflect the public burden experienced by Transportation
Service Providers under the Freight Transportation Management Program.
The IFF clause requires quarterly submission of the IFF. However, under
the Standard Tender of Service governing Transportation Service
Providers in the Freight Transportation Management Program, reports are
due on a monthly basis. Thus, presenting a much greater IC burden than
estimated in the notice.
Response: GSA does not agree with commenter's comment. The
Paperwork Reduction Act (PRA) requires agencies to estimate the burden
imposed on the public in complying with the collection. The estimated
burden hours for this reporting requirement are consistent with
previously approved estimates under this information collection. These
proposed GSAR revisions merely update the clause to reflect how GSA may
use the IFF to include the ability to fund other FAS programs and fund
initiatives that benefit other FAS programs. This is only an
administrative change, and does not represent a program change that
affects the existing reporting requirement associated with this case.
Additionally, the estimated burden hours already take into
consideration the varying amount of time it can take for different
types of entities to comply with the clause each quarter. The estimate
is meant to represent an approximate average across the entire MAS
Program. The estimated number of respondents is consistent with
previously updated information collections affecting all MAS Program
contractors. Also, the number of contractors under the MAS Program
changes constantly and therefore a rounded estimate is utilized for
this purpose.
GSA does not concur with the commenter's suggested revision to
[[Page 21402]]
current burden estimates, and as a result, no changes were made to the
burden estimates.
The Paperwork Reduction Act (44 U.S.C. chapter 35) applies. The
rule contains information collection requirements. The Office of
Management and Budget (OMB) has cleared this information collection
requirement under OMB Control Number 3090-0121, titled: Industrial
Funding Fee and Sales Reporting.
Public reporting burden for this collection of information is
estimated to average .0833 hours per response, including the time for
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection information.
The annual reporting burden is estimated as follows:
Respondents: 19,000.
Responses per Respondent: 4.
Total Responses: 76,000.
Hours per Response: .0833.
Total Burden Hours: 6,330.80.
List of Subjects in 48 CFR Part 552
Government procurement.
Dated: March 20, 2014.
Jeffrey Koses,
Senior Procurement Executive, Office of Acquisition Policy, Office of
Government-wide Policy.
Therefore, GSA amends 48 CFR part 552 as set forth below:
PART 552--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
1. The authority citation for 48 CFR part 552 continues to read as
follows:
Authority: 40 U.S.C. 121(c).
0
2. Amend section 552.238-74 by--
0
a. Revising the heading and date of the clause;
0
b. Removing from paragraph (a)(2) ``within'' and adding ``Federal
Acquisition Services (FAS) within'' in its place;
0
c. Removing from paragraph (a)(4) ``Supply'' and adding ``Acquisition''
in its place; and removing ``FSS'' and adding ``FAS'' in its place
(twice);
0
d. Removing from the introductory text of paragraph (b) and paragraph
(b)(1) ``FSS'' and adding ``FAS'' in its place;
0
e. Revising paragraph (b)(2); and
0
f. Removing from paragraph (c) ``FSS'' and adding ``FAS'' in its place
(twice).
The revised text reads as follows:
552.238-74 Industrial Funding Fee and Sales Reporting.
* * * * *
Modifications (Federal Supply Schedule) [May 16, 2014]
* * * * *
(b) * * *
(2) The IFF represents a percentage of the total quarterly sales
reported. This percentage is set at the discretion of GSA's FAS.
GSA's FAS has the unilateral right to change the percentage at any
time, but not more than once per year. FAS will provide reasonable
notice prior to the effective date of the change. The IFF reimburses
FAS for the costs of operating the Federal Supply Schedules Program.
FAS recoups its operating costs from ordering activities as set
forth in 40 U.S.C. 321: Acquisition Services Fund. Net operating
revenues generated by the IFF are also applied to fund initiatives
benefitting other authorized FAS programs, in accordance with 40
U.S.C. 321. Offerors must include the IFF in their prices. The fee
is included in the award price(s) and reflected in the total amount
charged to ordering activities. FAS will post notice of the current
IFF at https://72a.gsa.gov/ or successor Web site as appropriate.
* * * * *
[FR Doc. 2014-08659 Filed 4-15-14; 8:45 am]
BILLING CODE 6820-61-P