When Section 876 of the Fiscal Year 2019 National Defense Authorization Act gave the GSA the authority to do away with cumbersome price negotiations conducted at the initial contract award stage, many contractors remained skeptical as to when, and to what extent, the GSA would begin streamlining the procurement process accordingly.
However, in a powerful rebuke to its naysayers, the GSA appears to be tackling the massive undertaking involved with planning and implementing Section 876 through the following three actions it took in August of 2020.
The GSA issued a FAR Class Deviation doing away with price negotiations at the award stage for “certain IDIQ multiple-award contracts for services acquired on an hourly rate basis.” However, this deviation made it clear that it “does not implement the authority provided under [Section 876] for FSS contracts.”
The GSA issued its first ever contract vehicle without conducting price negotiations at the award stage in its ASTRO solicitation for unmanned robotics platforms.
Perhaps the most promising development is that the GSA issued an Advance Notice of Proposed Rulemaking “seek[ing] public comments that can be used to assist in the implementation of Section 876” for “the Federal Supply Schedule (FSS) program.”
These developments are surely welcome news to all too many government contractors who understand the challenge of negotiating prices for services at the initial award stage where performance requirements aren’t wholly defined or only a portion of which they are truly interested.
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Edward Bailey is an associate attorney whose practice focuses on government contracts law, employment law, and litigation. Ed graduated cum laude from George Mason University’s Antonin Scalia Law School where he was a member of the Law Review.
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