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Software companies selling indirectly to the Federal Government finally received an answer to a question that has lingered for years – can a software company going to market through a reseller bring a direct claim under the Contract Disputes Act (“CDA”) against the Federal Government for violating a term of the software company’s End User License Agreement? Sadly, the answer is “no.”
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Continue Reading Software Companies Beware: Board Holds Subcontractor Cannot Enforce EULA Directly Against Federal Government

As you probably know, we have been following very closely developments relating to Section 889 of the 2019 National Defense Authorization Act (NDAA), which prohibits executive agencies from purchasing restricted…
Continue Reading The True Impact of the Chinese Telecom Ban on Government Contractors

On September 9, 2019, the U.S. General Services Administration (“GSA”) announced it would be issuing a mass modification (expected sometime this month)[1] requiring all new and existing GSA Multiple Award Schedule (“MAS”) contracts include two new clauses. The new clauses come in response to Section 889 of the FY2019 National Defense Authorization Act (“NDAA”), and recently implemented FAR provisions, which impose prohibitions relating to the procurement of certain Chinese telecommunications equipment and services (which we have previously discussed here and here). The two clauses to be added to all MAS contracts are:

  • FAR 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment (Aug 2019)
  • GSAR 552.204-70, Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment (Aug 2019)

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Continue Reading GSA Implements Restrictions on Certain Chinese-Made Telecommunications Services and Equipment

On May 18, 2017, House Armed Services Committee Chairman Mac Thornberry introduced H.R. 2511, titled “The Defense Acquisition Streamlining and Transparency Act.” The bill drastically would change how commercial off-the-shelf (“COTS”) products are acquired by the Department of Defense, and could signal the end of the line for the GSA Schedules program. This bill aims to create a more streamlined COTS procurement system. To achieve this goal, the proposed legislation ignores longstanding procurement principles, statutes, and regulations – and even contravenes several stated positions of the Trump administration – to provide an alternative to the General Services Administration (“GSA”) Schedules program the drafters clearly believe is too burdensome, inefficient, and costly.
Continue Reading House Armed Services Committee Takes Aim at GSA with Proposed Legislation

Note: The following post is adapted from the forthcoming 2016/2017 GSA Schedule Handbook, published by ThompsonWest, due out later this year.

Any way you look at it, 2016 will be an interesting year.  You may have heard there is an election on the horizon.  That’s right; in November 2016, U.S. voters will trudge down to their neighborhood elementary schools and community centers to pull the lever (or, far less climactically, tap a graphic on a screen) for their favorite candidate.  As we draft this preface in Washington, D.C. in June 2016, Hillary and Donald are neck in neck for the White House with more than half of all Americans saying they are dissatisfied with both candidates.  This dismal statistic, of course, is consistent with the growing numbers of Americans who say they are dissatisfied with the federal Government (and Congress) generally.…

Continue Reading What GSA Can Learn from the National Parks Service

In a Federal Supply Schedule (“FSS”) procurement conducted under FAR Subpart 8.4, all items quoted and ordered by the agency are required to be available on the vendor’s schedule contract as a precondition to its receiving the order. This means, in the case of a task order for services, that all of the solicited labor categories must be on the successful vendor’s FSS contract.
Continue Reading Understanding the Scope of Federal Supply Schedule Labor Category Descriptions: Risks and Opportunities Presented by the GAO’s AllWorld Language Consultants Decision

Note: The following post is adapted from the forthcoming 2015/2016 GSA Schedule Handbook, published by ThompsonWest, due out later this year.

The last year has been a tough one for the GSA Multiple Award Schedules (“MAS”) program.  The Federal Acquisition Service (“FAS”) – the agency charged with administering the MAS program – has struggled to re-invent itself and its contracting vehicles in order to ensure they both stay relevant in an increasingly competitive federal marketplace.  The byproduct of this struggle has been mostly negative for Schedule vendors.
Continue Reading As GSA FAS Struggles to Reinvent Itself, Contractors Suffer

Not enough Government contracts blogs incorporate movie trivia.  So here’s my contribution to fill this obvious gap in the procurement blogosphere:  Is the following quotation (a) from a famous Monty Python skit or (b) from a conversation between two Government auditors discussing GSA’s recently-proposed effort to do away with (at least in part) the Price Reductions Clause?
Continue Reading I’m Not Dead Yet (Or: A Brief Look at the Future of the Price Reductions Clause in Light of GSA’s Proposed Transactional Data Reporting Rule)

On November 18, 2014, the General Services Administration (“GSA”) hosted an Industry Day seeking feedback on its proposal to add a Cloud Computing Special Item Number (“SIN”) on  its IT Multiple Award Schedule 70 (“MAS IT-70”).  A SIN is GSA’s categorization method that groups similar products, services, and solutions together to make the acquisition process easier.  This move is not surprising in light of the Government’s “Cloud First” policy (announced in 2011), which requires agencies to evaluate cloud computing options “whenever a secure, reliable, and cost-effective option exists.”  Further, GSA’s latest proposal noted that a cloud SIN “would … enabl[e] agencies to take full advantage of cloud computing benefits to maximize capacity utilization, improve IT flexibility and responsiveness, and minimize cost.”  In the end, by offering a cloud-specific SIN, GSA hopes to drive more value into the schedules program by providing cloud-based options more rapidly and easily than before.  This article will give you a brief overview of the new, proposed SIN.
Continue Reading Shopping for the Cloud Made Easy – GSA’s Special Item Number Project for Cloud Computing and Request for Comments

A recent decision by the U.S. Court of Federal Claims (“COFC”) serves as a reminder on the limits a contractor faces in protesting task and delivery order awards. In MORI Associates, Inc. v. United States, No. 13-671C (2013), the COFC dismissed the pre-award bid protest by MORI, the incumbent contractor, for lack of jurisdiction because the protest challenged the Government’s decision to obtain services through a task order competition under an Indefinite Delivery/Indefinite Quantity (“IDIQ”) Government-Wide Acquisition Contract (“GWAC”) rather than through a General Services Administration (“GSA”) Schedule contract.
Continue Reading Non-Protestable Task Order Procurement Decision Shuts Out Incumbent Contractor

Every now and then, the FAR Councils issue a Federal Acquisition Circular (FAC) – an update to the Federal Acquisition Regulation implementing a number of changes. Often these changes are rather pro forma. But occasionally, you get a Circular with many different (and interesting) issues. FAC 2005-67, issued in late-June 2013, with rules becoming effective in June and July 2013, is one such circular. We thought it would be helpful to highlight five of these rules that raise interesting and timely issues, especially where they may signal additional changes yet to come.
Continue Reading Lots of Little Things – FAR Updates from the Federal Acquisition Circular