May 16, 2016

Reproduced with permission from Federal Contracts Report, 105 FCR (May 11, 2016). Copyright 2016 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com

GSA Sends Warning Letters to Contractors Over Origins of Products

The General Services Administration (GSA) is clamping down on thousands of federal contractors to ensure that products sold to government agencies are made in the U.S. or are otherwise in compliance with the Trade Agreement Act (TAA), Bloombery BNA has learned.

Regional GSA offices in Fort Worth, Texas, and Kansas City, Missouri, emailed letters dated May 5 to more than 2,800 schedule contract holders that directed vendors to “review their total offering of product” by submitting a spreadsheet that verified the countries of origin of each schedule contract product, as well as copies of a Certificate of Origin or other certification from the manufacturer on its letterhead for products made in the U.S. or in a TAA-designated country.

“The continued reoccurrence of non-compliant product threatens the integrity of the [Multiple Aware Schedule] contracts and GSA Advantage! website which federal customers rely on to make daily purchases that are compliant with the Federal Acquisition Regular (FAR),” the GSA letter said. “This threat cannot be tolerated for the good for the federal procurement community, MAS business line, and continued success of a primary system you rely on to serve federal customers.”

The letter provided to Bloomberg BNA was unsigned but included the name of a Fort Worth-based GSA contracting officer at the bottom.

The letter, addressed to “Dear GSA Partner,” noted that over the past year, the Multiple Award Schedule program had responded to “numerous” congressional inquiries and Freedom of Information Act requests regarding allegations of failed compliance with the TAA and the Buy American Act.

Made In America

In January, Sen. Charles Schumer (D-N.Y.) said the GSA Advantage! website had listed products that were described as “made in America” but in fact were produced overseas. He said the GSA should review its website labels and excise products that are falsely listed.

The Buy American Act, in place since 1933, and the regulation that stems from it significantly restricts the federal government from purchasing non-American-made products. The TAA stretches the law by allowing the purchase of end products from the U.S. or designated countries, which, according to GSA’s website, includes World Trade Organization government procurement agreement countries; free-trade agreement countries; least-developed countries; and Caribbean Basin countries. The designated country list, which includes 124 nations, excludes prominent U.S. trading partners China and India.

The letter from the Great Southwest Region in Fort Worth ordered companies that have found products manufactured in non-TAA designated countries to remove all such products from their TAA contract; upload a new and revised catalog to GSA’s Schedule Input Program; and send an updated price list and terms and conditions to the National Schedules Information Center.

The GSA gave companies that received the letter five days, until the close of business May 10, to respond. Businesses that didn’t reply in time face severe penalties, according to the letter, including, typed in bold letters, “the removal of your entire GSAdvantage file.”

In a statement, a GSA spokesperson told Bloomberg BNA: “Once learning of products being offered on a Schedule contract that are potentially non-compliant with the Trade Agreements Act (TAA), or when the country of manufacture is otherwise misrepresented, GSA will conduct an immediate review an take swift action to ensure that vendors remove non-compliant products from Schedule contracts and GSA Advantage!.”

Unmanned Vehicles

According to the GSA spokesperson, 2,872 letters were emailed to contractors from the agency’s offices in Fort Worth and Kansas City. That included 308 emails sent to Schedule 51V Hardware Superstore contractors; 1,184 to Schedule 84 providers of security, facilities management, marine craft and emergency/disaster response-related goods; 641 to Schedule 56 makers of building materials and supplies and alternative energy solutions; 361 to Schedule 66 producers of test and measurement equipment, unmanned scientific vehicles and geographic environmental analysis equipment; and 378 emails to Schedule 7 makers of hospitality and cleaning equipment, sanitizers and toiletries.

The spokesperson confirmed the GSA was targeting those specific schedules and products because of congressional and other complaints. “Those schedules are among the first group of targeted schedules with identified risk that GSA is reviewing,” the spokesperson said.

Attorneys who represent contractors that received the emailed letter told Bloomberg BNA they are asking GSA for extensions to conduct necessary research into their product lines, and to complete all the needed paperwork.

Maureen Jamieson, executive director of contracts and consulting at Centre Law & Consulting in Tysons Corner, Va., said she has heard from several clients concerned about the letter, including some based in Fort Worth and another that was contacted by GSA’s Kansas City office. She said GSA had not yet responded to her requests for an extension.

“I’ve been hearing from clients of many years. They’re coming out of the woodwork,” Jamieson told Bloomberg BNA, adding that she was concerned about the tight turnaround time the GSA’s directive gave contractors. “If you’re going to do it right, it just requires more time, ” she said.

Day One

“It’s definitely been a scramble, I guess you could say,” Gunjan Talati, a Washington-based partner with Thompson Hine, told Bloomberg BNA.

Talati said companies have been responsible for complying with the underlying requirements – that they adhere to the rules put forth in the TAA and Buy American Act – “since Day One.” But regardless of how diligent companies have been in fully adhering to those laws in the past, he said, “I look at this as a wake-up call.”

Compliance with the TAA is often a complicated affair that can require “a detailed examination of the product’s manufacturing process,” Talati and fellow Thompson Hine Partner Lawrence Prosen wrote in a client advisory issued a day after GSA emails were sent. This includes a determination as to whether articles from one country have been “substantially transformed” into a new and different article of commerce that is distinctly different from the original item, they wrote.
 

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