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general_correspondence

s/w maintenance agreements and commerciality

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You are asking us about a footnote in a ten year old GAO report? Call GAO and ask them what they meant. Maybe the person who wrote the footnote is still around. Let us know what you find out. Take your time.

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I'm not sure about Formerfed's chronology, but his point is certainly correct. The Federal Supply Schedule preceded the Federal Acquisition Streamlining Act of 1994. At some point, the GSA decided to rely on the new commercial item procedures. I couldn't tell you whether that was before or after this report. What I can tell you is, at the time the report was written in November 2000, FAR 8.401(a) & 38.101(a), instead of referring to "commercial supplies and services," referred to "commonly used supplies and services."

Today, it is clear that GSA uses Part 12 procedures for FSS contracts. As others have pointed out, a quick look at the subcontractor's schedule contract would make that apparent.

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The GAO report was published in 2000. The FAR already covered commercial items by then. However, in 2000, FAR 38.101(a) read in part as follows:

The Federal Supply Schedule program, pursuant to 41 U.S.C. 259(B)(3)(A), provides Federal agencies with a simplified process of acquiring commonly used supplies and services in varying quantities while obtaining volume discounts.

Emphasis added. Today, FAR 38.101(a) says:

The Federal Supply Schedule program, pursuant to 41 U.S.C. 259(B)(3)(A), provides Federal agencies with a simplified process of acquiring commercial supplies and services in varying quantities while obtaining volume discounts.

Emphasis added.

Checking the Federal Register archives I found that GSAM 538.271 changed during the 1990s. Today, GSAM 538.271(a) reads in part as follows:

MAS awards will be for commercial items as defined in FAR 2.101.

However, in 1993 it read as follows:

MAS prices will, to the maximum extent practicable, be negotiated as a discount from established catalog prices of commercial items sold in substantial quantities to the general public.

Then, in 1996, it was changed to read as follows:

MAS awards will, to the maximum extent practicable, be commercial items negotiated as a discount from established catalog prices for items sold in substantial quantities to the general public.

It was changed again in 1997 by final rule to read as it does today. According to the Federal Register of February 16, 1996, at 61 FR 6164, GSA was beginning to change its schedule policies to conform with the Federal Acquisition Streamlining Act (FASA). On August 21, 1997, at 62 FR 44518, in the final rule that changed GSAM 538.271 to read as it does today, GSA said in the background statement:

Recently, GSA has made a number of changes in the MAS program. This final rule represents a continuation of GSA's efforts to reinvent the MAS program in order to move the program to a future environment of greater use of commercial practices, increased competition, and greater responsibility for making smart buying decisions within the framework of the MAS program by contracting personnel at the front-line closest to the need... GSA initiated this rule in order to simplify and streamline the process for awarding and administering MAS contracts and to bring GSA's policies and procedures for the MAS program in line with the Federal Acquisition Regulation (FAR) as amended to implement the Federal Acquisition Streamlining Act of 1994 and the Clinger-Cohen Act of 1996... This final rule makes changes in the program by... Eliminating requirements for offerors to certify sales data as current, accurate and complete while putting offerors on notice of the Government's expectations for data submissions... .

It undoubtedly took GSA time after enactment of the Federal Acquisition Streamlining Act to ensure and declare that its schedule contracts are for commercial items and for old contracts to be closed out. It likely had not accomplished that by the time GAO conducted its study, hence, the footnote. However, I'm speculating based on the record. I don't know why the footnote in the ten year old GAO report says what it does and I don't care.

None of this matters, however, because general_correspondence does not want the software and services he needs to buy to be commercial items and is bound and determined to prove that they are not, which explains the resort to a footnote in a ten year old GAO report. He must be getting paid by the hour to produce paperwork.

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