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Ryan Roberts is a partner in the Government Contracts, Investigations and International Trade Practice Group in the firm's Washington, D.C. office. He is also a member of the firm's Aerospace and Defense and Retail Industry Teams.

Trade Agreements Act compliance changed fundamentally three years ago. Or, so we thought on December 7, 2016, when the U.S. Court of International Trade (“CIT”), the appellate body for country
Continue Reading The Evolution of TAA Compliance Post-Energizer – “Substantially Transformed” Has Substantially Changed

On May 2, 2019, the General Services Administration (“GSA”) and the Office of Management and Budget (“OMB”) finally released their Phase 2 Implementation Report (the “Phase 2 Report”) for “Procurement Through E-Commerce Portals,” as directed by Section 846 of the National Defense Authorization Act for Fiscal Year 2018 (“FY 2018 NDAA”).[1]

GSA/OMB offered a sneak preview of the Phase 2 Report at an Industry Day held on December 12, 2018, during which GSA/OMB revealed their intent to proceed with a proof of concept contract utilizing only the E-Marketplace model. Industry pushback against a single model proof of concept was both quick and severe and, coupled with the lengthy delay issuing the Phase 2 Report, many wondered whether GSA/OMB were reevaluating their proposed approach.
Continue Reading The Future of COTS Procurement: Top 10 Questions from GSA’s Section 846 Phase 2 Report

On June 21, 2018, the General Services Administration (“GSA”) and the Office of Management and Budget (“OMB”) held their second Industry Day concerning the implementation of Section 846 of the National Defense Authorization Act (“NDAA”) of 2018 (“Procurement Through E-Commerce Portals,” known hereafter as the “Portals Program”).[1] The Industry Day, GSA’s first since issuing its Phase I implementation plan, provided a unique opportunity for GSA to update the public on its current thinking for the Portals Program. A few highlights from the Industry Day are set out below.
Continue Reading The Future of COTS Procurement: Section 846 Industry Day Highlights

Last month, the General Services Administration (“GSA”) and the Office of Management and Budget released their Phase 1 Implementation Plan (the “Plan”) for Section 846 of the National Defense Authorization Act (“NDAA”) of 2018 (“Procurement Through E-Commerce Portals,” known hereafter as “Portals Program”).[1] Section 846 directs GSA to establish one (or several) “e-commerce portals,” and in its recently-released Plan, GSA made four legislative requests to Congress GSA believes are necessary not only to bring its vision for the Portals Program online, but to make it the preferred method for COTS procurement government-wide. On April 3, 2018, GSA officials discussed these legislative requests at a panel discussion hosted by the Coalition for Government Procurement (“CGP”). During the CGP panel, GSA officials were candid about their current vision for the Portals Program and the rationale behind these legislative requests. Their comments relating to two of the four legislative requests (bolded below) were particularly informative, as they shed some light on their unwritten vision for the Portals Program, as well as the deal GSA is hoping to strike with Congress.
Continue Reading “Portal of Portals” – GSA’s (Unwritten) Vision for COTS E-Commerce Marketplaces

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

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

Two recent developments have the potential to change the landscape for contractors providing services to the Government.  Government contractors and subcontractors are required to comply with a host of regulations governing their hiring practices and the wages they pay and benefits they provide to certain categories of employees.  A recent Executive Order and court decision, however, have the potential to alter these requirements drastically.
Continue Reading The Changing Landscape for Services Contractors

1. Proposal to Amend FAR to Implement Revised SBA Regulations

On February 3, 2014, DoD, GSA, and NASA proposed to amend the FAR, via FAR Case 2012-022, to implement revisions made by the SBA to its regulations implementing section 8(a) of the Small Business Act “to provide additional FAR coverage regarding protesting an 8(a) participant’s eligibility or size status, procedures for releasing a requirement for non-8(a) procurements, and the ways a participant could exit the 8(a) Business Development program.”  In addition to several editorial changes, the notice proposes the following substantive changes:


Continue Reading What’s New Out There? Highlights from the February 2014 Federal Register

On November 14, 2013, the U.S. Department of Justice announced a False Claims Act settlement with Basco Manufacturing Company, a maker of shower enclosures, for $1.1 million related to misstatements on U.S. Customs and Border Protection (CBP) entry forms.  The alleged misstatements were intended to allow the company to avoid antidumping duties (ADD) and countervailing duties (CVD) on aluminum extrusions used in its products that were actually from China, but transshipped through Malaysia in an attempt to avoid the duties.  The settlement against Basco does not resolve the entire matter, as Basco was one company of many involved in an alleged conspiracy to conceal the Chinese origin of the aluminum extrusions at issue.  Aspects of the settlement highlight certain risks posed by the False Claims Act that compound general U.S. enforcement of trade laws, and a reminder that diversion for inbound products to the United States may be a significant compliance issue of which companies should  be aware.
Continue Reading A Peek Around the Curtain: A “Reverse” False Claims Act Settlement for Avoiding Customs Charges