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Electronic Code of Federal Regulations

e-CFR data is current as of May 26, 2020

Title 48Chapter 5Subchapter FPart 538 → Subpart 538.2


Title 48: Federal Acquisition Regulations System
PART 538—FEDERAL SUPPLY SCHEDULE CONTRACTING


Subpart 538.2—Establishing and Administering Federal Supply Schedules


Contents
538.270   Evaluation of Federal Supply Schedule (FSS) offers.
538.270-1   Evaluation of offers without access to transactional data.
538.271   FSS contract awards.
538.272   FSS price reductions.
538.273   FSS solicitation provisions and contract clauses.

538.270   Evaluation of Federal Supply Schedule (FSS) offers.

538.270-1   Evaluation of offers without access to transactional data.

(a) Applicability. Utilize this evaluation methodology for negotiating MAS offers when the commercial sales practices format is included in the solicitation (see 515.408).

(b) When offerors have commercial catalogs, negotiate concessions from established catalogs, including price and non-price terms and conditions.

(c) The Government will seek to obtain the offeror's best price (the best price given to the most favored customer). However, the Government recognizes that the terms and conditions of commercial sales vary and there may be legitimate reasons why the best price is not achieved.

(d) Establish negotiation objectives based on a review of relevant data and determine price reasonableness.

(e) When establishing negotiation objectives and determining price reasonableness, compare the terms and conditions of the MAS solicitation with the terms and conditions of agreements with the offeror's commercial customers. When determining the Government's price negotiation objectives, consider the following factors:

(1) Aggregate volume of anticipated purchases.

(2) The purchase of a minimum quantity or a pattern of historic purchases.

(3) Prices taking into consideration any combination of discounts and concessions offered to commercial customers.

(4) Length of the contract period.

(5) Warranties, training, and/or maintenance included in the purchase price or provided at additional cost to the product prices.

(6) Ordering and delivery practices.

(7) Any other relevant information, including differences between the MAS solicitation and commercial terms and conditions that may warrant differentials between the offer and the discounts offered to the most favored commercial customer(s). For example, an offeror may incur more expense selling to the Government than to the customer who receives the offeror's best price, or the customer (e.g., dealer, distributor, original equipment manufacturer, other reseller) who receives the best price may perform certain value-added functions for the offeror that the Government does not perform. In such cases, some reduction in the discount given to the Government may be appropriate. If the best price is not offered to the Government, you should ask the offeror to identify and explain the reason for any differences. Do not require offerors to provide detailed cost breakdowns.

(f) You may award a contract containing pricing which is less favorable than the best price the offeror extends to any commercial customer for similar purchases if you make a determination that both of the following conditions exist:

(1) The prices offered to the Government are fair and reasonable, even though comparable discounts were not negotiated.

(2) Award is otherwise in the best interest of the Government.

(g) State clearly in the award document the price/discount relationship between the Government and the identified commercial customer (or category of customers) upon which the award is based.

[81 FR 41136, June 23, 2016]

538.271   FSS contract awards.

(a) FSS awards will be for commercial items as defined in FAR 2.101.

(b) Before awarding any FSS contract, determine that the offered prices are fair and reasonable (see FAR subpart 15.4 and 538.270). Document the negotiation and your determination using FAR 15.406-3 as guidance.

[64 FR 37227, July 9, 1999, as amended at 81 FR 41137, June 23, 2016; 84 FR 17039, Apr. 23, 2019]

538.272   FSS price reductions.

(a) Applicability. This section applies when the contract contains the basic clause 552.238-80 Industrial Funding Fee and Sales Reporting.

(b) The basic clause and Alternate I of 552.238-81, Price Reductions, requires the contractor to maintain during the contract period the negotiated price/discount relationship (and/or term and condition relationship) between the eligible ordering activities and the offeror's customer or category of customers on which the contract award was predicated (see 538.271(c)). If a change occurs in the contractor's commercial pricing or discount arrangement applicable to the identified commercial customer (or category of customers) that results in a less advantageous relationship between the eligible ordering activities and this customer or category of customers, the change constitutes a “price reduction.”

(c) Ensure that the contractor understands the requirements of section 552.238-75 and agrees to report all price reductions to the Contracting Officer as provided for in the clause.

[81 FR 41137, June 23, 2016, as amended by 84 FR 17039, Apr. 23, 2019]

538.273   FSS solicitation provisions and contract clauses.

(a) As prescribed in this paragraph, insert the following provisions in the beginning of FSS solicitations:

(1) 552.238-70, Cover Page for Worldwide Federal Supply Schedules. Use in all FSS solicitations. Use Alternate I for single award Federal Supply Schedules.

(2) 552.238-71, Notice of Total Small Business Set-Aside. Use in FSS solicitations containing special item numbers (SINs) that are set aside for small business.

(3) 552.238-72, Information Collection Requirements. Use in all FSS solicitations.

(b) As prescribed in this paragraph, insert the following clause and provision as an addendum to 52.212-1, Instructions to Offerors—Commercial Items:

(1) 552.238-73, Identification of Electronic Office Equipment Providing Accessibility for the Handicapped. Use only in FSS solicitations for electronic office equipment.

(2) 552.238-74, Introduction of New Supplies/Services (INSS). Use only in FSS solicitations allowing the introduction of new supplies/services. Note: GSA Form 1649, Notification of Federal Supply Schedule Improvement, may be required if revising a Special Item Number (SIN).

(c) As prescribed in this paragraph, insert the following provisions as an addendum to 52.212-2, Evaluation—Commercial Items:

(1) 552.238-75, Evaluation—Commercial Items (Federal Supply Schedules). Use in FSS standing solicitations.

(2) 552.238-76, Use of Non-Government Employees to Review Offers. Use only in FSS solicitations when non-government employees may be utilized to review solicitation responses.

(d) As prescribed in this paragraph, insert the following clauses as an addendum to Clause 52.212-4, Contract Terms and Conditions-Commercial Items:

(1) 552.238-77, Submission and Distribution of Authorized FSS Price Lists. Use in all FSS solicitations and contracts.

(2) 552.238-78, Identification of Products that have Environmental Attributes. Use only in FSS solicitations and contracts that contemplate items with environmental attributes.

(3) 552.238-79, Cancellation. Use in all FSS solicitations and contracts.

(4) 552.238-80, Industrial Funding Fee and Sales Reporting. Use Alternate I for Federal Supply Schedules with Transactional Data Reporting requirements. Clause 552.238-81 Alternate I should also be used when vendors agree to include clause 552.238-80 Alternate I in the contract.

(5) 552.238-81, Price Reductions. Use Alternate I for Federal Supply Schedules with Transactional Data Reporting requirements. This alternate clause is used when vendors agree to include clause 552.238-80 Alternate I in the contract.

(6) 552.238-82, Modifications (Federal Supply Schedules). Use in all FSS solicitations and contracts.

(i) Use Alternate I for Federal Supply Schedules that only accept eMod.

(ii) Use Alternate II for Federal Supply Schedules with Transactional Data Reporting requirements. This alternate clause is used when vendors agree to include clause 552.238-80 Alternate I in the contract.

(7) 552.238-83, Examination of Records by GSA (Federal Supply Schedules). Use in all FSS solicitations and contracts. With the Senior Procurement's Executive approval, the contracting officer may modify this clause to provide for post-award access to and the right to examine records to verify that the pre-award/modification pricing, sales or other data related to the supplies or services offered under the contract which formed the basis for the award/modification was accurate, current, and complete. The following procedures apply:

(i) Such a modification of the clause must provide for the right of access to expire 2 years after award or modification.

(ii) Before modifying the clause, the contracting officer must make a determination that absent such access there is a likelihood of significant harm to the Government and submit it to the Senior Procurement Executive for approval.

(iii) The determinations under paragraph (9)(ii) must be made on a schedule-by-schedule basis.

(8) 552.238-84, Discounts for Prompt Payment. Use in all FSS solicitations and contracts.

(9) 552.238-85, Contractor's Billing Responsibilities. Use in all FSS solicitations and contracts.

(10) 552.238-86, Delivery Schedule. Use only in FSS solicitations and contracts for supplies.

(11) 552.238-87, Delivery Prices. Use in all FSS solicitations and contracts.

(12) 552.238-88, GSA Advantage!®. Use in all FSS solicitations and contracts except the Department of Veterans Affairs Federal Supply Schedules.

(13) 552.238-89, Deliveries to the U.S. Postal Service. Use only in FSS solicitations and contracts for mailable articles when delivery to a U.S. Postal Service (USPS) facility is contemplated.

(14) 552.238-90, Characteristics of Electric Current. Use only in FSS solicitations and contracts when the supply of equipment which uses electrical current is contemplated.

(15) 552.238-91, Marking and Documentation Requirements for Shipping. Use only in FSS solicitations and contracts for supplies when the need for outlining the minimum information and documentation required for shipping is contemplated.

(16) 552.238-92, Vendor Managed Inventory (VMI) Program. Use only in FSS solicitations and contracts for supplies when a VMI Program is contemplated.

(17) 552.238-93, Order Acknowledgement. Use only in FSS solicitations and contracts for supplies.

(18) 552.238-94, Accelerated Delivery Requirements. Use only in FSS solicitations and contracts for supplies.

(19) 552.238-95, Separate Charge for Performance Oriented Packaging (POP). Use only in FSS solicitations and contracts for items defined as hazardous under Federal Standard No. 313.

(20) 552.238-96, Separate Charge for Delivery within Consignee's Premises. Use only in FSS solicitations and contracts for supplies when allowing offerors to propose separate charges for deliveries within the consignee's premises.

(21) 552.238-97, Parts and Service. Use in all FSS solicitations and contracts.

(22) 552.238-98, Clauses for Overseas Coverage. Use only in FSS solicitations and contracts when overseas acquisition is contemplated. The following clauses and provisions shall also be inserted in full text, when applicable.

(i) 52.214-34   Submission of Offers in the English Language.

(ii) 52.214-35   Submission of Offers in U.S. Currency.

(iii) 552.238-90   Characteristics of Electric Current.

(iv) 552.238-91   Marking and Documentation Requirements Per Shipment.

(v) 552.238-97   Parts and Service.

(vi) 552.238-99   Delivery Prices Overseas.

(vii) 552.238-100   Transshipments.

(viii) 552.238-101   Foreign Taxes and Duties.

(ix) 52.247-34   FOB Destination.

(x) 52.247-38   FOB Inland Carrier, Country of Exportation.

(xi) 52.247-39   FOB Inland Point, Country of Importation.

(23) 552.238-99, Delivery Prices Overseas. Use only in FSS solicitations and contracts when overseas acquisition is contemplated.

(24) 552.238-100, Transshipments. Use only in FSS solicitations and contracts when overseas acquisition is contemplated.

(25) 552.238-101, Foreign Taxes and Duties. Use only in FSS solicitations and contracts when overseas acquisition is contemplated.

(26) 552.238-102, English Language and U.S. Dollar Requirements. Use in all FSS solicitations and contracts.

(27) 552.238-103, Electronic Commerce. Use in all FSS solicitations and contracts except the Department of Veterans Affairs Federal Supply Schedules.

(28) 552.238-104, Dissemination of Information by Contractor. Use in all FSS solicitations and contracts.

(29) 552.238-105, Deliveries Beyond the Contractual Period—Placing of Orders. Use only in FSS solicitations and contracts for supplies.

(30) 552.238-106, Interpretation of Contract Requirements. Use in all FSS solicitations and contracts.

(31) 552.238-107, Export Traffic Release (Supplies). Use in FSS solicitations and contracts for supplies, except vehicles.

(32) 552.238-108, Spare Parts Kit. Use only in FSS solicitations and contracts for items requiring spare part kits. This information is to be specified at the order level.

(33) 552.238-109, Authentication Supplies and Services. Use in Federal Supply Schedule 70 solicitations only, and only contracts awarded Special Item Numbers (SINs) associated with the Homeland Security Presidential Directive 12 (HSPD-12).

(34) 552.238-110, Commercial Satellite Communication (COMSATCOM) Services. Use only in FSS solicitations and contracts for COMSATCOM services.

(35) 552.238-111, Environmental Protection Agency Registration Requirement. Use only in FSS solicitations and contracts for supplies when items may require registration with the Environmental Protection Agency.

[84 FR 17039, Apr. 23, 2019; 84 FR 22382, May 17, 2019]

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