Final Rule released for Common Commercial Terms

GSA Final Rule Defines Common Commercial Terms

On February 22, GSA issued a Final Rule addressing common terms that are inconsistent with Federal Law. The rule aims to streamline agreements over CSAs, EULAs, Terms of Sale, and similar sets of terms and conditions. The rule reverses several controversial provisions from an earlier Proposed Rule and class deviation by reverting the order of precedence and eliminating the requirement to provide full text of all provisions.

The rule also formalizes the longstanding stance that certain terms and conditions cannot be enforced by law via a paragraph addition to GSAR 552.212-4. The paragraph identifies 15 common commercial terms, which are viewed as non-negotiable and required by federal law. It prohibits automatic  renewals, and provides that disputes are governed by federal law. The change allows GSA to ignore these clauses during negotiations, thereby reducing time and expenses. Among the included terms are:

  • commercial supplier agreements
  • unenforceability of unauthorized obligations
  • solicitation provisions and contract clauses for the acquisition of commercial items

GSA responded well to industry complaints about the proposed rule, modifying or reversing the most egregious propositions.

For more information see the National Law Review.

OLM rule finalized

OLMs, Order-Level Materials, are goods and services that are not covered by original FSS contracts or BPAs, but are necessary to the completion of a particular order. Historically, FSS prohibited agencies from adding them into task orders and delivery orders placed against contracts. This meant agencies could only acquire them by placing task orders on multiple-award-contracts, and were hence forced to make two separate procurements. However, on January 24, FSS issued a final rule to authorize agencies to acquire OLMs when placing orders, offering greater flexibility and efficiency.

The rule makes clear that OLMs are not open-market items, but rather may be added to an order under the new GSAR provision 552.238-82. The list of schedules authorized to allow for OLMs should soon be available here. 

Under the new rule, agencies may add OLMs up to one-third the value of the order, with some restrictions. Except for travel OLMs, each proposed OLM above the simplified acquisition threshold of $150,000 should come with three quotes. This ensures that prices are fair and reasonable.

Industry partners with affected GSA FSS schedules will receive bilateral modifications from GSA adding the OLM Special Item Numbers (SINs) to their GSA contracts. Before accepting, contractors should ensure that they have policies and procedures in place to comply with the three-quote requirement and the OLM limitation of one-third of the total order value.

Overall, this looks like a welcome change that will increase efficiency and decrease administrative costs.

Rolling Down the FedRAMP

GSA recently announced the launch of the FedRAMP Tailored Baseline for Cloud Service Providers with Low Impact Software-as-a-Service systems. FedRAMP Tailored aims to support solutions that have low risk and low costs for agencies. This means a streamlined process for a variety of applications. Tailored also standardizes an approach to determine risks associated with cloud applications and provides the government with the freedom to use the cloud while maintaining security.

FedRAMP tailored was open for comment in January and July of 2017. The program provides base security control requirements for industry to meet. Agency authorizing officials are responsible for adding controls where necessary for compliance. GSA believes “The FedRAMP program, including our goals for Tailored, is a key part of issuing an informed, risk-based authority to operate.”

For more information, see the FedRAMP Tailored website. 

Uh EEO-1! The Due Date Changed!

The Employer Information Report EEO-1 deadline shifted

Instead of a fiscal end-of-year due date, organizations now have until March 31, 2018 to submit and certify the EEO-1 report. The 2017 report will collect race, ethnicity, and gender data by job category. It will not collect the hours worked and pay data.

Employers may use payroll data from October, November, or December in the report. Make a note in your calendars,  and be prepared to get a mail reminder two months before the due date.

Speak now or forever hold your piece

GSA Extends Comment Period

Good news for the procrastinators among you! GSA extended the deadline to comment on rules governing acquisition, federal travel, and property management. This extension could signal an increase in flexibility and a re-commitment to vendor and customer relations on GSA’s part.

If you haven’t yet commented on  these policies, now is your chance! Head on over to the federal register to offer your input on leasing acquisition policy, federal travel rules, and property management regulations.