GSA launches review of contracts for commercial items

The General Services Administration plans to review 15 areas where it thinks contracts for commercial items are inconsistent with federal law, according to a recent federal register notice

In GSA’s notice, the agency makes the argument that the standard Commercial Supplier Agreements—through which commercial supplies and services are offered to the public—do not work in all cases as they contain terms and conditions “that make sense when the purchaser is a private party but are inappropriate when the purchaser is the federal government.”

The 15 areas range from the definition of contracting parties to contract formation to state and foreign laws.

GSA’s federal notice is reminiscent of a U.S. Court of Appeals ruling that took place last week concerning a bid protest that CGI Federal made in February 2014.

The protest called into question alterations that the Centers for Medicaid and Medicare Services made in a solicitation. CGI was the incumbent contractor. The company claimed that the alterations restricted competition and violated laws set out in the Federal Acquisition Regulation.

The Professional Services Council agreed with CGI and issued an amicus brief that argued that laws around commercial line items should apply to all commercial procurements, and since GSA schedules are commercial, the same laws should apply. CGI won that round.

PSC is voicing similar concerns with GSA's Federal Register notice. The industry group wants to make sure GSA applies the findings in the CGI case to its review.

“Since the GSA schedules program is based on the premise that offers are all ‘commercial items,’ this [GSA] review has to be informed by the [Court of Appeals] ruling,” said PSC executive vice president and counsel Alan Chvotkin in a release. The ruling holds "that federal agencies are limited in the extent to which unique government terms and conditions can differ from industry-standard commercial item terms and conditions.”

The organization said that it intends to comment on the proposed class deviation.

Comments are due by April 20.