As part of ongoing efforts to create an online marketplace for government purchasers, GSA officials held a public meeting yesterday to discuss potential market structures and legal requirements.

A wide range of stakeholders attended the hearing, responding to questions from GSA on issues such as how many online portals should be implemented, who should have privity of contract with the government, and whether certain federal procurement requirements should be waived for program participants.  GSA had previously published its discussion topics in a Federal Register notice on December 15, 2017.

GSA’s town hall took place as part of the implementation of Section 846 of the National Defense Authorization Act for FY 2018.  As discussed in a previous blog post, the 2018 NDAA requires GSA and OMB to develop and implement e-commerce portals for commercially available off-the-shelf (“COTS”) item procurements, rolling out the program under a three-phase plan.  2018 NDAA § 846(c)(1).  Phase I requires the development of a plan for implementing the commercial e-commerce portals program, including recommendations regarding “changes to, or exemptions from, [existing procurement] laws.”  Id.  That Phase I plan is due to Congress on March 12, 2018. Id.

GSA did not answer questions about the program.  Instead, GSA officials explained that the meeting was intended as a listening session, allowing GSA to begin a dialogue with government contractors and to hear and consider their ideas.  Officials from GSA and OMB asked numerous questions of the industry representatives who comprised each panel of the meeting and made clear that the information provided would be considered as the program moves forward.

Structure of the E-Commerce Portals

Industry participants discussed a variety of potential structures that GSA could use to implement the portals.

One model that was discussed would require a portal provider to contract with GSA to provide an online interface.  Under this approach, suppliers would then sign up to use the portal, potentially via a contract with the portal provider.  Next, government purchasers would select suppliers from the portal, entering prime contracts with suppliers directly.

Another approach would require online portal providers to sell directly to the government, providing both a user interface for online purchases and the end items of supply.

Industry participants raised these, as well as a variety of other models, for GSA’s consideration.

Consistent with the text of the statute, which directs the use of “multiple” portals, numerous attendees advocated that multiple online portals would encourage competition among a larger pool of potential contractors and deliver better value to the government.

Enforcement of Legal Requirements

Going forward into the next phases of analysis and implementation, GSA will have to address significant questions about the extent to which participants in these marketplaces will be affected by federal procurement laws.  Although COTS items are already subject to lesser legal requirements than other supplies and services sold to the government, GSA’s questions – and participants’ comments – reflected a broad range of issues related to acquisition statutes, regulations, and policies.  This topic is particularly salient given Congress’s directive to GSA to “resist the urge to make changes to the existing features, terms and conditions, and business models of available e-commerce portals, but rather demonstrate the government’s willingness to adapt the way it does business.”  Consistent with the statute, some industry participants encouraged GSA to adopt existing commercial terms and conditions—and exempt portal providers from certain procurement regulations—to achieve the efficiencies, value, and transparency of the commercial market. It remains unclear how GSA ultimately will resolve this issue.

The Role of GSA Schedules

Members of the public were also invited to pose questions to the panelists at the public meeting. Some audience members questioned the effect that the e-commerce portal program could have on GSA’s Federal Supply Schedules, and whether GSA would take steps to distinguish schedule contracts from online portals as procurement vehicles.  Although GSA did not clarify its position on this issue, agency officials stated that the agency would be open to further discussion about these kinds of matters.

GSA Invites Further Dialogue with Industry

GSA concluded the town hall by stating that the meeting marked the beginning of a dialogue with industry about the design of commercial e-commerce portals.  GSA further encouraged contractors to submit written comments on Phase I of Section 846 by January 16, 2018.

Commercial item contractors in particular should look for opportunities to engage in future town halls and public comment periods on this issue.

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Photo of Susan B. Cassidy Susan B. Cassidy

Susan Cassidy co-chairs Covington’s Aerospace and Defense Industry Group, and has been advising government contractors for more than 35 years on the requirements imposed on companies contracting with the U.S. Government.

Susan’s practice focuses on the intersection of cybersecurity, national security, and supply…

Susan Cassidy co-chairs Covington’s Aerospace and Defense Industry Group, and has been advising government contractors for more than 35 years on the requirements imposed on companies contracting with the U.S. Government.

Susan’s practice focuses on the intersection of cybersecurity, national security, and supply chain risk management for companies that sell products and services to the U.S. Government. Susan advises contractors at all phases of the procurement cycle, and regularly:

advises clients on compliance obligations imposed by the FAR, DFARS, and other agency regulatory requirements;
leads internal and government False Claims Act (FCA) investigations addressing allegations of violations of government cybersecurity, national security, supply chain, quality, and MIL-SPEC requirements; and
advises clients who have suffered a cyber breach where U.S. government information may have been impacted.

In her work with global, national, and start-up contractors, Susan advises companies on all aspects of government supply chain issues including:

Government cybersecurity requirements, including the Cybersecurity Maturity Model Certification (CMMC), DFARS 252.204-7012, FedRAMP, controlled unclassified information (CUI), and NIST SP 800-171 requirements;
Evolving sourcing issues such as Section 889, counterfeit part requirements, Section 5949 semiconductor product and service restrictions, and limitations on sourcing a variety of products from China; and
Federal Acquisition Security Council (FASC) regulations and product exclusions.

 

Susan previously served as senior in-house counsel for two major defense contractors (Northrop Grumman Corporation and Motorola Incorporated) and is Chambers rated in both Government Contracts and Government Contracts Cybersecurity. Chambers USA has quoted sources stating that “Susan’s in-house experience coupled with her deep understanding of the regulatory requirements is the perfect balance to navigate legal and commercial matters.”

Susan is a former Public Contract Law Procurement Division Co-Chair, former Co-Chair and current Vice-Chair of the ABA PCL Cybersecurity, Privacy and Emerging Technology Committee.

Susan’s pro-bono work extends to assisting veterans in a variety of matters, as well as providing advice to elderly clients on their wills and other end-of-life planning documents.

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Photo of Jennifer Plitsch Jennifer Plitsch

Jennifer Plitsch is a member of the 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…

Jennifer Plitsch is a member of the 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.

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Photo of Michael Wagner Michael Wagner

Mike Wagner represents companies and individuals in complex compliance and enforcement matters arising in the public procurement context. Combining deep regulatory expertise and extensive investigations experience, Mike helps government contractors navigate detailed procurement rules and achieve the efficient resolution of government investigations and…

Mike Wagner represents companies and individuals in complex compliance and enforcement matters arising in the public procurement context. Combining deep regulatory expertise and extensive investigations experience, Mike helps government contractors navigate detailed procurement rules and achieve the efficient resolution of government investigations and enforcement actions.

Mike regularly represents contractors in federal and state compliance and enforcement matters relating to a range of procurement laws and regulations. He has particular experience handling investigations and litigation brought under the civil False Claims Act, and he routinely counsels government contractors on mandatory and voluntary disclosure considerations under the FAR, DFARS, and related regulatory regimes. He also represents contractors in high-stakes suspension and debarment matters at the federal and state levels, and he has served as Co-Chair of the ABA Suspension & Debarment Committee and is principal editor of the American Bar Association’s Practitioner’s Guide to Suspension & Debarment (4th ed.) (2018).

Mike also has extensive experience representing companies pursuing and negotiating grants, cooperative agreements, and Other Transaction Authority agreements (OTAs). In this regard, he has particular familiarity with the semiconductor and clean energy industries, and he has devoted substantial time in recent years to advising clients on strategic considerations for pursuing opportunities under the CHIPS Act, Inflation Reduction Act, and Bipartisan Infrastructure Law.

In his counseling practice, Mike regularly advises government contractors and suppliers on best practices for managing the rapidly-evolving array of cybersecurity and supply chain security rules and requirements. In particular, he helps companies assess and navigate domestic preference and country-of-origin requirements under the Buy American Act (BAA), Trade Agreements Act (TAA), Berry Amendment, and DOD Specialty Metals regulation. He also assists clients in managing product and information security considerations related to overseas manufacture and development of Information and Communication Technologies & Services (ICTS).

Mike serves on Covington’s Hiring Committee and is Co-Chair of the firm’s Summer Associate Program. He is a frequent writer and speaker on issues relating to procurement fraud and contractor responsibility, and he has served as an adjunct professor at the George Washington University Law School.

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