GSA really does want to hear from you, whether you’re a portal provider or supplier, via its RFI’s that are now out for comment. The agency issued a further indication of what, precisely, it is hoping to obtain in this process via a blog post last week. Specifically, GSA would like to know what contract clauses could be exempt from this project based on the following criteria:
- Does the FAR clause/provision come from appropriation law?
- Does the FAR Clause/provision contain criminal or civil penalties?
- Does the specific statute explicitly state it applies?
- Is the FAR clauses/provision consistent with current standard commercial practice for the e-commerce industry?
- Is it required to implement Section 15 of the Small Business Act?
- Is it needed to implement a bid protest procedure?
- Is it consistent with the current commercial practice for the e-commerce industry?
GSA believes that there are no applicable clauses where a statute specifically says the provision should apply to commercial item or COTS acquisitions. Interestingly, however, the agency may include False Claims Act provisions in any e-portal provider contract as the FCA clearly contains criminal and civil penalties. How the FCA would be applied to portal providers, who may serve as both a direct biller, or billing conduit for a third party, should be a question providers ask back to GSA now. Potential FCA, or other civil liabilities, is something a portal provider should be well aware of when considering participating in the 846 project.
Comments on the RFI are due to GSA on July 20th and a public meeting may follow in August or September. The agencies ultimate goal is to launch a limited e-commerce pilot in early 2019.
A recent US Court of Federal Claims ruling provides important clarity to the application of the Trade Agreements Act and may help level the playing field between products made in the US from foreign components vs. foreign made products sold straight to federal agencies. As reported by Donna Yesner and Stephen Ruscus of Morgan Lewis, the Claims Court ruling in Acetris Health invalidated a VA and DOD interpretation that had resulted in the agencies previously prohibiting US government purchases of pharmaceuticals classified as domestic end products under the Buy American Act if they were determined to be products of India, China, or other non-favored countries under the Trade Agreements Act. The Court found that products “manufactured in the United States” can be purchased under the clause without regard to the source of the underlying components and ingredients. According to Yesner and Ruscus, “Although the ruling was specifically on pharmaceuticals, the decision is important to all suppliers of product to the government because it interprets the interplay of the BAA and TAA in all contracts subject to the TAA—currently those greater than $180,000—and confirms that the TAA “substantial transformation” test only controls if the product is not ‘manufactured’ in the United States.” The implications of this ruling are potentially far-reaching. The precedent could make TAA compliance easier for many contractors. Allen Federal recommends reviewing this ruling and its potential impact on your company with competent counsel.
DOD is expanding the use of Commercial Solutions Opening (CSO) use per a June 26th memo issued by Director of Defense Procurement Shay Assad. The move comes as GSA and DHS also expand their own CSO capabilities. The new DOD authority allows CO’s in any part of DOD to acquire, “any technology, process or method, including research and development, that is new as of the date of submission of a proposal of a technology, process, or method.” This is a Read more
Contractors and acquisition policy leaders have argued for years that there are “too many” Multiple Award Contracts (MAC’s). The cost of bidding, managing, and maintaining overlapping contract vehicles weighed contractors, and several government agencies, down. Everyone welcomed a move toward trimming vehicles.
Now that we have it, however, via OMB’s Best-in-Class initiative, not everyone is singing the same song. Industry, correctly, points out there appears to be little objective reasoning on what Read more
Although many government contractors are aware of the limitations of e-mail based marketing campaigns, we still do get requests from companies asking where they can obtain a list of federal agency e-mail addresses. Let’s be clear: Your federal prospect is likely deluged by dozens of promotional e-mails each week, if not daily. The time and money you sink into a straight e-mail approach would be better spent on a training class on the marketing approaches that do work. So, what is it that your federal prospect might look at? Content. Over and over Read more