Will products sold through commercial e-commerce portals be subject to the Buy American (BAA) or Trade Agreements Act (TAA)?  How will GSA ensure secure supply chains and the provision of products by authorized sources?  Is the proposed $25,000 purchase ceiling too high to ensure that agencies get good prices and make good acquisition decisions?  These were  among the questions asked to GSA representatives at last week’s Coalition for Government Procurement Spring Conference.  There were few concrete answers beyond GSA’s commitment to “transparency” and “dialog”.  Yet, these questions absolutely must be answered if both government agencies and federal contractors are to make smart business decisions about whether and how to use commercial e-commerce portals.  The smaller dollar transactions contemplated by this project suggest that the Buy American Act would apply, unless GSA issued an exemption, or applied the TAA threshold across the project, as it does with the Schedules program.  Ensuring secure supply chains is absolutely essential as cyber experts believe that supply chain infiltration is one good way to disrupt a cyber-secure perimeter.  The $25,000 limit is being openly questioned in the legal community, some of whom point out that there is no information yet on the impact of a $10,000 micro-purchase cap.  A $25K limit, they fear, may be going into deeper water too soon.  GSA will hold another industry day on June 21st and, while that day will be primarily for the agency to listen, it may want to begin by addressing some of these questions.

Can’t make it to the casino?  Nothing like making a high stakes gamble with your company and your job.  If you’re hoping that the compliance problem you know you have will just go away, you’d be better off playing high stakes poker in a private room in Vegas.  You’re playing with your own money there, not that of your company or investors.  Hiding an issue from the feds is a sure way to end up with huge penalties – and an appointment with a suspension official – if a Read more

Travel is not to be considered an Order Level Material item per a recent training deck delivered by GSA officials discussing how contractors should handle quotes that include OLM items.  Travel should, apparently, just be considered an “open market” item and priced according to a Read more

The Department of Defense spends 40% of its procurement budget through indefinite delivery, indefinite quantity or IDIQ type contracts, according to a recent report from the Government Accountability Office (GAO). That’s a significant amount of business and underscores why Read more

Despite the fact that two GSA Schedule contract holders had non-Trade Agreements Act (TAA) compliant items on their Schedule contract, the government was not harmed because the breach was not “material”, according to a recent US District Court ruling in United States ex rel. Folliard v. Comstor Corp.  “Material” is defined as any noncompliance that has an effect on the government’s payment decisions.  Before Schedule contractors get excited about the  application of this test, though, it is vital to understand that the ruling was limited to the specifics of this case.  Further, the Comstor decision makes it clear that materiality questions will be handled on a case-by-case basis.  Other courts could disagree with the District Court’s methodology, as well.  The ruling is also unlikely to have a substantial impact on federal TAA compliance efforts.  Still, contractors that find themselves defending whistleblower suits or audit findings may find the Comstor decision useful.  It shows that simply alleging a technical violation of a statute, regulation, or contract term is insufficient to claim actual harm to the government.  Any whistleblower or DOJ attorney must be able to show that the government actually suffered harm as a result of the violation.  Overall, it is best to make sure that your TAA compliance efforts remain robust and to use the Comstor decision only if required.