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On March 16, 2018, the General Services Administration (“GSA”) and the Office of Management and Budget (“OMB”) released their Phase 1 Implementation Plan (the “Plan”) for “Procurement Through E-Commerce Portals” as directed by Section 846 of the National Defense Authorization Act for FY 2018. As we have written on this blog many times before, Section 846 (or Section 801 as it was known previously) will change the way the Federal Government buys commercially-available-off-the-shelf (“COTS”) products under the Simplified Acquisition Threshold (“SAT”). Section 846 directs GSA to establish one (or several) “e-commerce portals,” owned and operated commercially, through which the Government will procure COTS products under the SAT. The Plan is the general public’s first glimpse of how GSA envisions this program working, and the first of several critical steps to bring the “e-commerce portals” program online.
Continue Reading The Future of COTS Procurement: The Proposed Section 846 Business Models

An Analysis of NDAA Section 846’s Online Marketplace Provisions

There has been a lot of speculation about the future of commercial items purchasing within the federal Government since Representative Mac Thornberry circulated his “Section 801” proposal to hand over the bulk of DOD COTS purchasing to one or two existing online commercial marketplaces. (See Section 801 article HERE). Industry groups mobilized, companies called their legislators, and the media contributed several stories describing the wide spread criticism of the House NDAA proposal. To the surprise of many, however, the Senate seems to have heard industry’s concerns – or at least some of them.
Continue Reading Surprise, Surprise, Congress Does Listen — Well, Kind Of

In the words of Taylor Swift, “This is a new year. A new beginning. And things will change.” While I suspect Ms. Swift was not writing about Section 801 of the National Defense Authorization Act of 2018 when she tweeted this inspirational prognostication, she might as well have been – although, admittedly, it probably would not have generated quite so many re-tweets. In any event, if you have not done so yet, you should give it a read (Section 801 that is; not Ms. Swift’s tweets).
Continue Reading Change Is Upon Us: An Analysis of the Section 801 COTS Provisions of the 2018 NDAA

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

You no doubt have heard by now about GSA’s 23 June effort to “embrace  modern  technology while moving away from outmoded practices” – specifically, its implementation of the new Transactional Data Reporting Rule (“TDR Rule”) and its concurrent elimination of the Price Reductions Clause (“PRC”) and the Commercial Sales Practices Format (“CSPF”).  See 81 Fed. Reg. 41104 (June 23, 2016). The new rule covers certain GSA Multiple Award Schedules as well as the Agency’s GWAC and IDIQ contracts.   As it represents the most significant change to the GSA MAS program since  1994  (when  GSA  removed  federal  sales  as  a PRC trigger), the new rule has the potential to change significantly the way Schedule contractors (and others) do  business;  hence,  my  willingness  to  interrupt  your otherwise enjoyable day with a treatise on GSA Schedule contracting.
Continue Reading Price Reductions Are Dead; Long Live Price Reductions

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

Partner Jonathan Aronie recently published a review of the General Services Administration’s (“GSA”) Office of the Inspector General (“OIG”) Report concerning Contractor Team Arrangements (“CTA’s”) for the Coalition for Government …
Continue Reading “INCOMPLETE, INACCURATE, AND UNVERIFIABLE”: An Evening with the OIG’s Recent Audit Report on GSA’s Administration of Contractor Team Arrangements

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