Final Rule released for Common Commercial Terms

GSA Final Rule Defines Common Commercial Terms

On February 22, GSA issued a Final Rule addressing common terms that are inconsistent with Federal Law. The rule aims to streamline agreements over CSAs, EULAs, Terms of Sale, and similar sets of terms and conditions. The rule reverses several controversial provisions from an earlier Proposed Rule and class deviation by reverting the order of precedence and eliminating the requirement to provide full text of all provisions.

The rule also formalizes the longstanding stance that certain terms and conditions cannot be enforced by law via a paragraph addition to GSAR 552.212-4. The paragraph identifies 15 common commercial terms, which are viewed as non-negotiable and required by federal law. It prohibits automatic  renewals, and provides that disputes are governed by federal law. The change allows GSA to ignore these clauses during negotiations, thereby reducing time and expenses. Among the included terms are:

  • commercial supplier agreements
  • unenforceability of unauthorized obligations
  • solicitation provisions and contract clauses for the acquisition of commercial items

GSA responded well to industry complaints about the proposed rule, modifying or reversing the most egregious propositions.

For more information see the National Law Review.

Proposed Schedule 736 Enhancements

GSA Region 2 FAS Intends to Upgrade and Re-organize Schedule 736

Proposed modifications to Schedule 736 aim to make the schedule more customer-friendly and make Wage Grade Occupations and Professional Labor Categories more visible. According to the plan, there will be two primary SINs: 736-1 for Wage Grade Occupations and 736-5 for Professional Labor Categories. SIN 736-99 will remain unchanged.

The new categorization only applies to pending and not-yet-approved wage grade categories. Vendors under SINs 736-2, 736-3, and 736-4 will be consolidated into the two remaining SINs based on their current offerings. After the consolidation, those SINs will be deleted. FAS will update the solicitation to reflect all current Temp Help regulations, and contain a new ordering guide for customers.

Vendors who offer both Wage Grade and Professional Labor Rates will have to separate out their offerings. Through eMod, they should add either of the two primary SINs that apply to their offerings. Creation and submission of a new pricelist will be required, but price changes and new labor category additions are not allowed at this time.

Existing task orders will not be impacted, and will remain valid until their natural expirations. The SIN descriptions will show the entire List of Occupational Categories based on the fifth edition of the DOL Occupations Directory.

Ultimately, FAS aims to increase utilization of the schedule (as full-time hiring is becoming greatly abridged), streamline procurement and end contract redundancy, and facilitate greater capture of marketshare.

As always, if you have questions or concerns about these changes, please call our office at 301-913-5000.

GSA Chief Wants to Reveal Task Order Data

GSA Chief Emily Murphy May Make Task Order Data More Transparent

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Emily Murphy is contemplating making information on all multiple-award contracts public in the name of transparency. At present, only companies with spots on the solicitations can see relevant solicitations and awards, which offers business intelligence and a competitive edge on the federal market. In 2016, GSA spent over $110 billion through 2,600 multiple-award contracts.

Murphy has had  conversations with both the Office of Management and Budget and the Office of Governmentwide Policy. She is currently waiting for the  Federal Acquisition Service to deliver options that might offer some greater transparency. According to Murphy, “This needs to be addressed not just in the microcosm of the GSA schedules…. We need to be looking across government and making sure we are not disadvantaging the schedules program versus other programs, and we are not putting our vendors or our customers at a competitive disadvantage.”

Transparency is only one of four goals Murphy has set for  her term running GSA. Read more here.

OLM rule finalized

OLMs, Order-Level Materials, are goods and services that are not covered by original FSS contracts or BPAs, but are necessary to the completion of a particular order. Historically, FSS prohibited agencies from adding them into task orders and delivery orders placed against contracts. This meant agencies could only acquire them by placing task orders on multiple-award-contracts, and were hence forced to make two separate procurements. However, on January 24, FSS issued a final rule to authorize agencies to acquire OLMs when placing orders, offering greater flexibility and efficiency.

The rule makes clear that OLMs are not open-market items, but rather may be added to an order under the new GSAR provision 552.238-82. The list of schedules authorized to allow for OLMs should soon be available here. 

Under the new rule, agencies may add OLMs up to one-third the value of the order, with some restrictions. Except for travel OLMs, each proposed OLM above the simplified acquisition threshold of $150,000 should come with three quotes. This ensures that prices are fair and reasonable.

Industry partners with affected GSA FSS schedules will receive bilateral modifications from GSA adding the OLM Special Item Numbers (SINs) to their GSA contracts. Before accepting, contractors should ensure that they have policies and procedures in place to comply with the three-quote requirement and the OLM limitation of one-third of the total order value.

Overall, this looks like a welcome change that will increase efficiency and decrease administrative costs.

Hard Shutdown

Shutdown? Shut up!

Since Saturday, the United States government has been closed, shut down, unplugged (etc.), including the General Services Administration (GSA) and FAS. Right now, GSA is deferring to 4220.1K ADM, the Order which dictates “Operations in the Absence of Appropriations.”

What does this mean for our clients? Unfortunately, if you currently hold a GSA Schedule, you will not see any work done on your contract modifications and will not receive any government payments. Work for government agencies under the GSA Schedule must be halted during this time unless it is of mission critical importance (you will have been notified if this is you). Companies with proposals into GSA will be in a holding pattern for now, whether they are recently submitted and being triaged to the correct Contracting Officer, under administrative review, in negotiations, or awaiting final award.

“GSA’s role as an aggregator of large numbers of government assets and a supplier of critical tools, equipment, and supplies to other Federal agencies requires that GSA retain adequate staffing under a lapse in appropriations in order to protect Federal property under GSA’s custody and control and to continue to provide critical support to other Federal agencies’ exempt and excepted activities necessary for the protection of life and Federal property.”

In other words, GSA is mostly shut down. Buildings remain open for maintenance, power, and cleaning in a reduced capacity. Small crews are also being kept around to ensure protection of GSA assets and property, and to support other essential Federal agencies. GSA is held more responsible than other agencies to maintain their regular tasks. Think of it as a GSA skeleton crew. When the shutdown is over, GSA will update plans, decide what to do about missed events, and catch up with all the work piling up right now.

We are hopeful this shutdown ends soon. Stay vigilant, folks!