In an effort to create a new online market for government contracts, the General Services Administration (“GSA”) has invited industry to comment on the development and design of e-commerce portals for commercial procurements.

GSA’s request for comments will be published tomorrow, December 15, 2017.  This comment period provides a valuable opportunity for contractors to advise GSA on what regulations and business practices should apply to e-commerce portals, which will likely serve as a platform for billions of dollars’ worth of government business.

GSA’s announcement comes only days after the signing of the National Defense Authorization Act for FY 2018 (“2018 NDAA” or the “Act”), which included an overhaul of the commercial item procurement system and directed GSA to develop e-commerce systems.  Pursuant to Section 846(a) of the Act, GSA must establish e-commerce portals “for the purposes of enhancing competition, expediting procurement, enabling market research, and ensuring reasonable pricing of commercial products.”  2018 NDAA § 846(a).  GSA has 90 days to implement “phase I” of Section 846, under which GSA must develop a plan and schedule for creating e-commerce portals.  2018 NDAA § 846(c)(1).

In particular, the 2018 NDAA instructs GSA to consider “exemptions” from various federal procurement laws, giving GSA the opportunity to slash regulations and to simplify the process of acquiring commercial items.  Id.

As part of that mandate, GSA’s public comment period invites contractors to explain “what relief from applicable laws, Executive Orders, regulations, and policies is necessary for portal providers to want to enter this marketplace?”

GSA is also seeking input on a variety of other complex issues relating to the design of e-commerce portals.  For example, GSA wants to know:

  • How commercial firms establish pricing, delivery, and terms of sale when buying Commercially Available Off-the-Shelf items on private sector e-commerce portals?
  • What is the commercial practice of e-commerce portal providers for monitoring compliance with applicable laws/regulations and supply chain risk management of sellers through the portal?
  • What, if any, adjustments should be made to existing requirements associated with small businesses, socio-economic programs, and mandatory sources?
  • What is the commercial practice for the privity of contract relationship between e-commerce portal providers, sellers through portal providers, and buyers?
  • Should the regulations for this program be in the FAR, in separate GSA regulations, or both? Why?

With these and other questions, GSA is providing the contractor community with an unusual opportunity to explain the burdens of the government contracting system and to potentially simplify that system for commercial items.

Contractors wishing to provide comments must submit them by January 16, 2018.  In addition, GSA will host a town-hall style public meeting on January 9, 2018 in Washington, DC.  GSA plans to host panels at this public meeting, and it has invited contractors to submit their names as potential panelists.  Parties wishing to participate in a panel should notify GSA by December 28, 2017.

Although the comment deadline is January 16, GSA encourages contractors to submit comments prior to January 9, so that GSA can address them during the town-hall meeting.

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Photo of Susan B. Cassidy Susan B. Cassidy

Ms. Cassidy represents clients in the defense, intelligence, and information technologies sectors.  She works with clients to navigate the complex rules and regulations that govern federal procurement and her practice includes both counseling and litigation components.  Ms. Cassidy conducts internal investigations for government…

Ms. Cassidy represents clients in the defense, intelligence, and information technologies sectors.  She works with clients to navigate the complex rules and regulations that govern federal procurement and her practice includes both counseling and litigation components.  Ms. Cassidy conducts internal investigations for government contractors and represents her clients before the Defense Contract Audit Agency (DCAA), Inspectors General (IG), and the Department of Justice with regard to those investigations.  From 2008 to 2012, Ms. Cassidy served as in-house counsel at Northrop Grumman Corporation, one of the world’s largest defense contractors, supporting both defense and intelligence programs. Previously, Ms. Cassidy held an in-house position with Motorola Inc., leading a team of lawyers supporting sales of commercial communications products and services to US government defense and civilian agencies. Prior to going in-house, Ms. Cassidy was a litigation and government contracts partner in an international law firm headquartered in Washington, DC.

Photo of Jennifer Plitsch Jennifer Plitsch

Jennifer Plitsch leads the firm’s Government Contracts Practice Group, where she works with clients on a broad range of issues arising from both defense and civilian contracts including contract proposal, performance, and compliance questions as well as litigation, transactional, and legislative issues.

She…

Jennifer Plitsch leads the firm’s Government Contracts Practice Group, where she works with clients on a broad range of issues arising from both defense and civilian contracts including contract proposal, performance, and compliance questions as well as litigation, transactional, and legislative issues.

She has particular expertise in advising clients on intellectual property and data rights issues under the Federal Acquisition Regulations (FAR) and obligations imposed by the Bayh-Dole Act, including march-in and substantial domestic manufacturing. Jen also has significant experience in negotiation and compliance under non-traditional government agreements including Other Transaction Authority agreements (OTAs), Cooperative Research and Development Agreements (CRADAs), Cooperative Agreements, Grants, and Small Business Innovation Research agreements.

For over 20 years, Jen’s practice has focused on advising clients in the pharmaceutical, biologics and medical device industry on all aspects of both commercial and non-commercial agreements with various government agencies including:

  • the Department of Veterans Affairs (VA);
  • the Department of Health and Human Services (HHS), including the Biomedical Advanced Research and Development Authority (BARDA), the National Institutes of Health (NIH), and the Centers for Disease Control (CDC);
  • the Department of Defense (DoD), including the Defense Threat Reduction Agency (DTRA), the Defense Advanced Research Projects Agency (DARPA), and the Joint Program Executive Office for Chemical Biological Defense (JPEO-CBRN); and
    the U.S. Agency for International Development (USAID).

She regularly advises on the development, production, and supply to the government of vaccines and other medical countermeasures addressing threats such as COVID-19, Ebola, Zika, MERS-CoV, Smallpox, seasonal and pandemic influenza, tropical diseases, botulinum toxin, nerve agents, and radiation events. In addition, for commercial drugs, biologics, and medical devices, Jen advises on Federal Supply Schedule contracts, including the complex pricing requirements imposed on products under the Veterans Health Care Act, as well as on the obligations imposed by participation in the 340B Drug Pricing program.

Jen also has significant experience in domestic sourcing compliance under the Buy American Act (BAA) and the Trade Agreements Act (TAA), including regulatory analysis and comments, certifications, investigations, and disclosures (including under the Acetris decision and Biden Administration Executive Orders). She also advises on prevailing wage requirements, including those imposed through the Davis-Bacon Act and the Service Contract Labor Standards.

Photo of Evan R. Sherwood Evan R. Sherwood

Evan Sherwood advises government contractors on a wide range of matters, including claims and disputes, government investigations, suspension and debarment, bid protests, and regulatory counseling. In addition, Evan counsels clients on risk mitigation strategies, including the process of obtaining SAFETY Act protection.