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Online Shopping for Government Contracts? GSA Invites Industry to Comment on Its Upcoming e-Commerce Portals

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.

© 2018 Covington & Burling LLP

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About this Author

Susan B. Cassidy, Government Contracts Attorney, Covington Burling, Law Firm
Partner

Susan Cassidy advises clients on the complex rules and regulations imposed on government contractors, with a special emphasis on the defense and intelligence sectors. She combines a sophisticated knowledge of the FAR and DFARS with the practical insight gained from senior in-house positions at both dedicated defense and commercial item contractors.

Ms. Cassidy conducts internal investigations for clients on wide array of government contracts and national security compliance issues. She regularly advises on FAR mandatory disclosure obligations and represents...

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Jennifer Plitsch, Litigation attorney, Covington
Partner

Jennifer Plitsch is co-chair of the firm’s Government Contracts practice group where her practice includes a wide range of contracting issues for large and small businesses in both defense and civilian contracting. Her practice involves advising clients on 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 and Bayh-Dole Act, and 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.

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Evan Sherwood, Covington Burling Law Firm, Government Contracts Attorney
Associate

Mr. Sherwood helps clients solve problems arising from government contracts. He advises government contractors on a wide range of matters, such as compliance with procurement regulations, contract formation, and government investigations. Mr. Sherwood also represents clients in bringing and defending bid protests, including challenges to the terms of competitions.

Representative Matters

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