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January 16, 2018

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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 is a partner in the firm’s Washington, DC office and a member of the Government Contracts Practice Group.  Ms. Cassidy works with clients to navigate successfully the complex rules and regulations that govern federal procurement.  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.  She regularly counsels clients on...

202-662-5348
Jennifer L. Plitsch, Government Contracts Attorney, Covington Burling, Law firm
Partner

Jennifer Plitsch is a partner in 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 transactional and legislative issues.  Her practice also includes bid protest and contract claims and appeals litigation before GAO, agency boards and the federal courts.  Ms. Plitsch has particular expertise in advising clients in the pharmaceutical and biologics industry.  She advises a range of pharmaceutical and biologics manufacturers on Federal Supply Schedule contracts, including the complex pricing requirements imposed on products under the Veterans Health Care Act, as well as research and development contracts and grants with various federal agencies.  She also has significant experience advising on the requirements of various programs under which vaccine products and biodefense medical countermeasures are procured by the Government.

202-662-5611
Evan Sherwood, Covington Burling Law Firm, Government Contracts Attorney
Associate

Evan Sherwood is an associate in the firm’s Washington, DC office. Prior to joining the firm, Mr. Sherwood clerked for the Honorable Charles F. Lettow of the United States Court of Federal Claims.

202-662-5981