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Federal Register / Vol. 86, No. 192 / Thursday, October 7, 2021 / Rules and Regulations
Commercial Items clause FAR 52.212
4 to make clear that the Commercial ItemsUnenforceable Clause section of the EPAAR deviation clause controls in the event of a conflict with a CSA, unless both parties agree to specific terms during the course of negotiating the contract. The EPA is also amending the EPAAR to create new subpart 1552.3
for class deviations. The EPA is also changing the deviated version of clause 1552.21673 into an alternate version because of its ongoing need.
These changes are accomplished by revising guidance and clauses contained throughout the EPAAR as follows:
EPAAR 1502.100 is amended to provide a definition for Commercial Supplier Agreements.
EPAAR 1512.101 is created and clarifies that paragraph u of the deviated Commercial Items clause at 1552.3124 FAR DEVIATION
prevents violation of the Anti-Deficiency Act.
EPAAR 1512.1070 is created to prescribe the use of the deviated Commercial Items clause at 1552.312
4 FAR DEVIATION in lieu of FAR
52.2124.
EPAAR 1513.507b is amended and requires the inclusion of 1552.33239 and 1552.23275 in all acquisitions for supplies or services that are offered under a CSA.
EPAAR Subpart 1513.6 is created and will add 1552.33239 to all purchases below the micro-purchase threshold.
EPAAR 1516.505b is amended to update the prescription for 1552.216
73.
EPAAR Subpart 1532.10 is created and clarifies the definition of supplier license agreements as used in FAR
32.705, Unenforceability of Unauthorized Obligations.
EPAAR 1532.1070 is created and directs contracting officers to utilize the clause at 1552.33239 in lieu of FAR
52.23239; and prescribes the use of clause Commercial Supplier AgreementsUnenforceable Clauses at 1552.23275.
EPAAR Subpart 1539.1 is created and advises contracting officers and contract specialists to follow the relevant EPAAR rules relating to CSA
procurement.
EPAAR 1552.21673 is amended to add an alternate clause version.
EPAAR 1552.23275 is created for non-commercial contracts and addresses the same common unenforceable CSA
terms addressed in 1552.3124 FAR
DEVIATION paragraph w described above.

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EPAAR Subpart 1552.3 is created and adds the class deviations for 1552.3124 and 1552.33239.
The Commercial Items clause at 1552.3124 FAR DEVIATION in subpart 1552.3 is modified to include instructions to contracting officers on how to incorporate the change in language from FAR 52.2124.
The order of precedence contained in paragraph s of the Commercial Items clause at 1552.3124 FAR
DEVIATION in subpart 1552.3 is amended to ensure that all of the terms of 1552.3124w, Commercial Supplier Agreementsunenforceable clauses, shall control over the terms of a CSA by including Commercial Supplier AgreementsUnenforceable Clauses in 1552.3124s2 and revising 1552.2124s4 to say, Addenda to this solicitation or contract, including any commercial supplier agreements as amended by the Commercial Supplier Agreements Unenforceable Clauses provision.
Paragraph u of the Commercial Items clause at 1552.3124 FAR
DEVIATION in subpart 1552.3 is amended to 1 reflect the new Commercial Supplier Agreement definition contained in EPAAR
1502.100; 2 expand coverage to language or provision in addition to clause in order to ensure that all CSA
terms are covered regardless of terminology utilized; and 3 include future fees, penalties, interest and legal costs as unauthorized obligations in addition to indemnification.
Paragraph w of the Commercial Items clause at 1552.3124 FAR
DEVIATION in subpart 1552.3 is created to address the following commonplace unenforceable elements found in CSAs:
Definition of contracting parties:
Contract agreements are between the commercial supplier or licensor and the U.S. Government. Government employees or persons acting on behalf of the Government will not be bound in their personal capacity by the CSA.
Laws and disputes: Clauses that conflict with the sovereign immunity of the U.S. Government cannot apply to litigation where the U.S. Government is a defendant because those disputes must be heard either in U.S. District Court or the U.S. Court of Federal Claims. CSA terms that require the resolution of a dispute in a forum or time period other than those expressly authorized by Federal law are deleted.
Statutes of limitation on potential claims shall be governed by U.S. Federal law.
Continued Performance:
Commercial suppliers may not
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unilaterally terminate or suspend a contract based upon a suspected breach of contract by the Government. These types of CSA terms violate 31 U.S.C.
3324, which provides that payment under a contract may not exceed the value of a service or product already delivered. A license that is prematurely terminated outside of the regular dispute resolution procedures results in the Government not receiving the value of that good or service ordered because it is no longer delivered. The removal of the contractors right to unilateral termination does not impair the contractors ability to pursue remedies.
It preserves all the legal remedies the contractor otherwise has under Federal law, including Contract Disputes Act claims. Remedies through the Contract Disputes Act or other applicable Federal statutes align with the continuing performance requirement set forth in paragraph d Disputes.
Arbitration; equitable or injunctive relief: A binding arbitration may not be enforced unless explicitly authorized by agency guidance or statute. Equitable remedies or injunctive relief such as attorney fees, cost or interest may only be awarded against the U.S. Government when expressly authorized by statute e.g., Prompt Payment Act.
Additional Terms: Incorporation of terms by reference is allowed provided the full text of terms is provided with the offer. Unilateral modifications to the CSA after the time of award may be allowed to the extent that the modified terms do not materially change the Governments rights or obligations, increase the Governments prices, decrease the level of service provided, or limit any Government right addressed elsewhere in the contract. A bilateral contract modification is required for any of the above described changes to be enforceable against the Government.
Automatic renewals: Due to AntiDeficiency Act restrictions, automatic contract renewal clauses are impermissible. Any such CSA clauses are unenforceable.
Indemnity contractor assumes control of proceedings: Any clause requiring that the commercial supplier or licensor control any litigation arising from the Governments use of the contractors supplies or services is deleted. Such representation when the Government is a party is reserved by statute for the U.S. Department of Justice.
Audits automatic liability for payment: Discrepancies found during an audit must comply with the invoicing procedures from the underlying contract. Disputed charges must be resolved through the Disputes
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