Earlier this week, the Coalition’s e-Commerce Working Group submitted written comments in response to the General Services Administration’s (GSA) December 15, 2017 notice, which solicited feedback regarding an e-Commerce pilot required by Section 846 of the Fiscal Year (FY) 2018 National Defense Authorization Act (NDAA). As discussed in previous blogs[1], the requirements in Section 846 hold the potential of affecting government procurement significantly for years to come.

Background

Section 846 establishes a framework for the implementation and use of e-Commerce portals across the government for the acquisition of certain commercial off-the-shelf items. Pursuant to the section, GSA is charged with establishing and managing the e-Commerce Portal program. On January 9th, GSA and the Office of Management and Budget (OMB) hosted a “modified town-hall style public meeting” where industry stakeholders made presentations and answered questions from GSA, the Office of Management and Budget (OMB), and the audience.

In its comments, the Coalition recommended the following 11 “strategic principles” for GSA to apply when developing future procurements through commercial e-Commerce portals:

e-Commerce Platform Pilot: Strategic Principles

  1. Ensure long-term online marketplace durability and competition by identifying multiple portal vendors/providers and multiple sellers across multiple portal providers.
  2. Require the identification and transparency of any fees associated directly or indirectly (e.g., paid by a seller to a portal provider) with a transaction under the pilot.
  3. Create a culture of best value in the selection and use of acquisition platforms taking into consideration market-based pricing, differences in terms and conditions, and total costs.
  4. Ensure that e-commerce solutions are easy to use, manage, and maintain for both purchasers and sellers.
  5. Develop programs that are flexible enough to accommodate rapidly changing technology and divergent customer needs.
  6. To the extent that it is advantageous to stakeholders, leverage existing government contracting vehicles to establish business relationships with commercial e-portal providers. This principle would help avoid additional contract duplication and avoid unnecessary confusion in the government’s existing supplier base.
  7. To the extent that the pilot involves a commercial online marketplace, clearly identify the party, with whom, the Government possesses privity of contract for the purposes of all legal compliance, and how enforcement will be executed. Without privity of contract, the Government may be delegating inherently governmental functions and lose its ability to ensure compliance with government specific requirements.
  8. Set a minimum standard of cyber-security for e-Commerce portals.
  9. Establish protocols to bar counterfeit and gray market items to reduce threats to national security.
  10. Explicitly state the extent to which the pilot vendor must flow-down necessary government terms and conditions to sellers under its contracts.
  11. Provide that ownership of any data directly or indirectly related to a given transaction traversing the portal, whether aggregated or otherwise resides with the Government, not the portal provider. Thus, the portal provider may not use that data for any other purpose than facilitating the immediate transaction.

E-commerce portals offer an exciting alternative for the acquisition of commercial items. The Coalition looks forward to continuing to work with GSA and OMB to develop a “common sense” e-Commerce solution for Federal customers, industry stakeholders, and the American people.

[1] See: FAR & Beyond Blog 6/22/17, FAR & Beyond Blog 6/27/17, FAR & Beyond Blog 7/13/17, FAR & Beyond Blog 10/12/17, and FAR & Beyond Blog 1/11/18