Alphabet Soup You Can Use: GSA Extends TAA & BAA PPE Waiver For COVID-19

McCarter & English Blog: Government Contracts & Export Controls

Hold on to your alphabet . . . GSA extends the MAS CD&F waiver of TAA & BAA for COVID-19 PPE to 8/1/20. If that made sense to you, please proceed to the final paragraph. But for the acronymically challenged, when everything is spelled out, it means that the General Services Administration (GSA) has extended through August 1, 2020, the agency’s Class Determination and Findings (CD&F) providing a temporary waiver of the Trade Agreements Act (TAA) and the Buy American Act (BAA) for certain personal protective equipment (PPE) and supplies sold through GSA Multiple Award Schedules (MAS) contracts used to support the national coronavirus disease 2019 (COVID-19) response (the Extension). Despite the limited waiver implemented under the initial CD&F, it appears that the PPE and supplies covered “are still not available in sufficient supply from Trade Agreement and Buy America statute compliant sources[,]” thus necessitating the Extension.

As described previously in this blog, the genesis of the limited waiver is an April 3, 2020 CD&F in which the GSA’s Senior Procurement Executive directed that all purchases of certain PPE and supplies—e.g., N95 masks, bleach, disinfectants, sanitizers—primarily used to combat the COVID-19 pandemic may be acquired without regard to the domestic preference restrictions imposed by the TAA and BAA clauses included in a GSA Schedule contract because the PPE and supplies identified were “temporarily unavailable in sufficient quantity or satisfactory quality” or not “mined, produced, or manufactured in the United States in sufficient and reasonably commercial quantities of a satisfactory quality.” Under the limited waiver, the applicable PPE and supplies may be manufactured in any country, including China, except those listed in FAR Subpart 25.7 (i.e., Cuba, Iran, Sudan, Burma and North Korea).

Although many federal agencies have relaxed certain contracting restrictions in response to the COVID-19 pandemic, contractors should not assume that the clauses in their federal contracts have fallen by the wayside. In contrast, these unprecedented times require a hyperawareness of potential compliance issues, especially in the often-complicated arena of GSA Schedules. Thus, to implement this waiver properly, eligible GSA Schedule contractors with applicable supply chain or manufacturing capabilities and available stock should engage their contracting officer to ensure their contract has been appropriately modified.

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