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Federal Register / Vol. 86, No. 192 / Thursday, October 7, 2021 / Rules and Regulations
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clause. Any audits requested by the commercial supplier or licensor will be performed at supplier or licensors expense.
Taxes or surcharges: Any taxes or surcharges that will be passed along to the Government will be governed by the terms of the underlying contract. The cognizant contracting officer must make a determination of applicability of taxes whenever such a request is made.
Assignment of CSA or Government contract by supplier: The contract, CSA, party rights and party obligations may not be assigned or delegated without express Government approval. Payment to a third party financial institution may still be reassigned.
Confidentiality of CSA terms and conditions: The content of the CSA may not be deemed confidential. The Government may retain other marked confidential information as required by law, regulation or agency guidance, but will appropriately guard such confidential information.
1552.33239 FAR DEVIATION
in subpart 1552.3 is created to amend the language of FAR 52.23239 to reflect the definition of CSAs contained at EPAAR 1502.100, to 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 to include future fees, penalties, interest and legal costs as unauthorized obligations in addition to indemnification.
This final rule will reduce risk by uniformly addressing common unacceptable CSA terms, facilitate efficiency and effectiveness in the contracting process by reducing the administrative burden for the Government and industry, and promote competition by reducing barriers to industry, including small businesses. It will also create a new EPAAR subpart for class deviations, and an alternate version for clause 1552.21673.
III. Final Rule The final rule amends Part 1502, Definition of Words and Terms, by adding a definition for Commercial Supplier Agreements to 1502.100. It adds Part 1512, Acquisition of Commercial Items, Subpart 1512.1, Special Requirements for the Acquisition of Commercial Items, 1512.101, Unenforceability of Unauthorized Obligations, and 1512.1070, Contract Clause. It amends Part 1513, Simplified Acquisition Procedures, by adding Subpart 1513.6, Action At or Below the Micropurchase Threshold, and amending 1513.507b.
It amends 1516.505b by adding an alternate clause version to the clause
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prescription. It amends Part 1532, Contract Financing, by adding Subpart 1532.10, Unenforceability of Unauthorized Obligation; and 1532.1070, Contract clauses. It amends Part 1539, Acquisition of Information Technology, and adds Subpart 1539.1, Commercial Supplier Agreements. It amends Subpart 1552.2, Texts of Provisions and Clauses, by adding an alternate clause version to 1552.216
73, Fixed Rates for ServicesIndefinite Delivery/Indefinite Quantity Contract;
and adding 1552.23275, Commercial Supplier AgreementsUnenforceable Clauses. Finally, it amends Part 1552, Solicitation Provisions and Contract Clauses, by adding Subpart 1552.3, FAR
and EPAAR Class Deviations, and class deviations for clauses 52.2124 and 52.23239. This final rule:
1. Amends part 1502, Definition of Words and Terms, by adding a definition for Commercial Supplier Agreements to 1502.100, Definitions.
2. Adds part 1512, Acquisition of Commercial Items, and subpart 1512.1, Special Requirements for the Acquisition of Commercial Items, which clarify that paragraph u of the Commercial Items clause at 1552.312
4 FAR DEVIATION prevents violation of the Anti-Deficiency Act.
3. Adds 1512.101, Unenforceability of Unauthorized Obligations, and 1512.1070, Contract Clause, to prescribe the use of the deviated Commercial Items clause at 1552.312
4 FAR DEVIATION in lieu of FAR
52.2124.
4. Amends part 1513, Simplified Acquisition Procedures, by adding Subpart 1513.6, Action At or Below the Micropurchase Threshold, and amending 1513.507b, which will automatically apply the clauses at 1552.23275 and 1552.33239 to all purchases below the micro-purchase threshold.
5. Amends the currently designated 1513.507a to become 1513.507ai, and the currently designated 1513.507b to become 1513.507aii, due to the addition above.
6. Amends 1516.505b by adding an alternate clause version to the prescription.
7. Adds EPAAR Subpart 1532.10, Unenforceability of Unauthorized Obligation, that clarifies the definition of supplier license agreements.
8. Adds EPAAR 1532.1070 and establishes the prescription for use of EPAAR clause 1552.23275 in all procurements where supplies or services are offered under a CSA.
9. Amends part 1539, Acquisition of Information Technology, and adds
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subpart 1539.1, Commercial Supplier Agreements.
10. Amends subpart 1552.2, Texts of Provisions and Clauses, to add an alternate clause version to 1552.216
73, Fixed Rates for ServicesIndefinite Delivery/Indefinite Quantity Contract, that pays the contractor escalated rates for optional periods of performance.
11. Adds EPAAR 1552.23275, Commercial Supplier Agreements Unenforceable Clauses, that provides the terms and conditions for supplies or services offered under a CSA.
12. Adds EPAAR subpart 1552.3, FAR
and EPAAR Class Deviations, to contain 1552.3124, Contract Terms and ConditionsCommercial Items FAR
DEVIATION; and 1552.33239/
Unenforceability of Unauthorized Obligations FAR DEVIATION.
1552.3124 updates paragraphs s and u, and adds paragraph w. 1552.332
39 updates terms from Terms of Sale and End User Licensing Agreement to Commercial Supplier Agreement.
IV. Statutory and Executive Orders Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a significant regulatory action under the terms of Executive Order E.O. 12866 58 FR
51735, October 4, 1993 and is therefore not subject to review under the E.O.
B. Paperwork Reduction Act This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3b.
C. Regulatory Flexibility Act RFA, as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996 SBREFA, 5 U.S.C. 601 et seq.
The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute; unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impact of this proposed rule on small entities, small entity is defined as: 1 A small business that meets the definition of a small business found in the Small Business Act and codified at 13 CFR 121.201; 2 a small governmental jurisdiction that is a
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