Earlier today, the FAR Council issued a final rule revising the FAR definition of “commercial item.” The final rule effectively splits the prior definition of “commercial item” into separate definitions for “commercial product” and “commercial service,” without making substantive changes to the existing definitions. The final rule also replaces references to “commercial items” throughout the FAR with corresponding references to “commercial products,” “commercial services,” or both, as appropriate.
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Procurement Reform
The End of CSP and PRC Requirements? — GSA’s TDR Pilot Program Faces Further Internal Criticism
As GSA Multiple Award Schedule contractors know all too well, Schedule contracting involves a complex web of customer-tracking, reporting, and price-adjustment requirements. Those of us who navigate these often byzantine rules understand why many in the industry have called for the adoption of an alternative approach to verifying price reasonableness.
For the last several years, GSA has been piloting just such an alternative: the Transactional Data Reporting (“TDR”) program, through which the government collects transaction-level data on products and services purchased through the Schedule to make data-driven decisions that save taxpayer dollars. GSA has been running a TDR pilot program for several years to test the potential for a new regulatory regime, though the program sometimes has been the source of criticism and controversy. Now that controversy has heightened further: GSA’s Office of Inspector General published an audit report on June 24, 2021 that is sharply critical of the program, only to see GSA’s Federal Acquisition Service (“FAS”) Commissioner publicly reject the report’s conclusions and defend TDR’s effectiveness.
Time will tell whether the TDR rule becomes the new standard for GSA Schedule contracting. But the latest round of controversy suggests that the current maze of requirements are not going away any time soon.
New FAR Rule Continues Shake-Up of LPTA Procurements
By Kayleigh Scalzo, Jay Carey & Andrew Guy on
Federal civilian agencies will now face new restrictions on when and how they can use Lowest Price Technically Acceptable source selection procedures. A new rule in the Federal Acquisition Regulation is the latest in a series of measures aimed at regulating the use of LPTA source selection procedures. The new rule implements an October 2019 proposed rule and takes effect on February 16, 2021.…
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GSA Awards First Contracts to Develop an Online Shopping Platform, and the White House Seems to Be Paying Attention
On Friday, the General Services Administration (“GSA”) announced that it had awarded three contracts to develop online shopping portals for commercially-available off-the-shelf (“COTS”) items. The awardees are Amazon Business, Fisher Scientific, and Overstock.com.
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Lowest Priced Technically Acceptable Procurements Are Less and Less Acceptable: Proposed FAR Rule Further Continues Shake-Up of LPTA Procurements
On October 2, 2019, the Department of Defense, General Services Administration, and NASA issued a proposed rule that would amend the Federal Acquisition Regulation to establish new restrictions on when and under what circumstances civilian agencies may employ Lowest Price Technically Acceptable source selection procedures. The proposed rule would implement Section 880 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019, and follows hot on the heels of DoD’s final rule making similar — but not identical — amendments to the Defense Federal Acquisition Regulation Supplement. (See our recent blog post on the new DFARS rule.)
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GSA’s E-Commerce Portal Program Is Here: What the New Solicitation Means for Government Contractors
By Michael Wagner, Evan R. Sherwood & Jeff Bozman on
After nearly two years of planning, GSA has released an RFP seeking prototypes of online shopping portals that would allow federal customers to buy COTS items from their computers.
GSA’s plan implements Section 846 of the NDAA for FY 2018, which instructed the agency to create an internet marketplace exempt from many standard procurement regulations. As we have previously discussed in this blog, GSA began planning in 2017, sought input from industry in 2018 and 2019, and the announced earlier this year that it would proceed with proofs of concept. But while the new solicitation was a long time coming, GSA clearly is ready to move quickly: contractors will have less than a month before the proposal deadline to digest the solicitation and assess how its terms might affect their business approach, data rights, and competitive standing.
Lowest Priced Technically Acceptable Procurements Not Always Acceptable: New DFARS Rule Continues Shake-Up of LPTA Procurements
On September 26, 2019, the Department of Defense issued a final rule amending the Defense Federal Acquisition Regulation Supplement to establish new restrictions on the use of Lowest Price Technically Acceptable source selection procedures. Effective October 1, 2019, this new rule imposes specific limitations and prohibitions governing when and under what circumstances LPTA procedures are appropriate for a particular procurement. The new rule has the potential to expand — and provide a more definite legal framework for — pre-award bid protests challenging the use of LPTA source selection procedures.
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White House Seeks Input from Biotech Stakeholders on Bioeconomy
Last week, the White House Office of Science and Technology Policy (“OSTP”) issued a request for information (“RFI”) to learn how the Government can more effectively “support scientific discovery, the development of technological advances, and increase the impact of a vibrant bioeconomy on the Nation’s vitality and our citizens’ lives.” 84 Fed. Reg. 47561 (Sep. 10, 2019). The Bioeconomy is the “infrastructure, innovation, products, technology, and data derived from biologically-related processes and science that drive economic growth, promote health, and increase public benefit.” Id. To establish guiding principles to promote and protect the U.S. Bioeconomy, OSTP is seeking input from interested parties, including “those with capital investments, performing innovative research, or developing enabling platforms and applications in the field of biological sciences, to include healthcare, medicine, pharmaceuticals, biotechnology, manufacturing, energy production, and agriculture.” Id. Of particular interest to government contractors, OSTP is seeking information regarding opportunities for public-private partnerships, infrastructure investments, and best practices for data sharing and data protection. Id. at 47562. Responses are due on or before 11:59 pm on October 22, 2019. We have included the specific topics on which OSTP seeks input below.
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Federal Online Shopping Platform Coming Soon — GSA to Issue Prototype RFP Within the Year
In the latest step towards delivering on the long-promised “Procurement Through Commercial e-Commerce Portals” program, the General Services Administration has announced plans to build a proof-of-concept for federal online shopping, aiming to issue an RFP by the end of the year for web-based acquisition platforms.
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New York Executive Order and Legislation Signal Increased Debarment Activity
Two recent developments in Albany suggest that New York is poised to kick its debarment activity into a higher gear. First, Governor Andrew Cuomo issued an executive order pointedly reminding state entities of their authority to debar non-responsible contractors and directing all state entities to ensure that contractors remain “responsible” throughout the term of their contracts. Second, the New York legislature recently enacted a bill to reform the Metropolitan Transportation Authority (MTA), which included far-reaching provisions that allow MTA to debar any contractor that exceeds 10% of the contract cost or time for a construction project. Together, these developments indicate a move towards greater scrutiny of contractor performance, and they highlight the significant consequences of not meeting compliance and performance obligations.
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