On March 19, 2020, the General Services Administration (“GSA”) issued guidance regarding its process for issuing Defense Priorities and Allocation System (“DPAS”) Rated Orders. Significantly, however, GSA reminded its contracting officers that “[e]xisting Government sources of supply and contract vehicles should be considered first. Check to see if the required supplies are available.” See gsa.gov/buying-selling/purchasing-programs/gsa-schedules/gsa-schedule-offerings/consolidated-schedule/industrial-products-services-category and gsaadvantage.gov/advantage/search/specialCategory.do?cat=ADV.DR. GSA federal supply schedules (“FSS”) can be a contracting officer’s one-stop shop for protective equipment, disinfectants, hand sanitizers, and other products and supplies to combat the coronavirus COVID-19. The GSA FSS also offers a variety of solutions for agencies looking for teleworking options. See gsa.gov/buying-selling/purchasing-programs/gsa-schedules/gsa-schedule-offerings/consolidated-schedule/professional-services-category.

The largest active buyer in the market right now remains the federal government. FSS is an important tool for the government to get supplies and services, but do not be fooled. With these potential opportunities, there also are potential risks for FSS contractors that fail to follow the terms and conditions of their FSS contracts and/or seek to cut corners.

As is often the case, FSS vendors go above and beyond to provide services or deliver supplies to federal agencies to respond to emergency situations like the COVID-19 pandemic. As is also the case, months later, after the dust settles, agency offices of inspector general arrive to audit contracts. Inevitably, in the effort to expeditiously fill government orders, things get overlooked or ignored, and “but I was helping the agency fulfill its mission in response to a pandemic” is not a defense that will resonate with government auditors.

Based upon our experience, here are some tips for FSS vendors to follow and/or traps to avoid:

• • • Do not represent (or sell) items as being on your FSS contract if they are not. If you have supplies or services that are not on your FSS which government customers are seeking to respond to the COVID-19 situation, contact your contracting officer and get those supplies or services added to your contract via modification or sold as Order-Level Materials (“OLMs”) if applicable;
    • Communicate with your government customers. GSA recently reminded FSS vendors that a mandatory and enforceable requirement under FSS contracts is to provide GSA and government customers with order status (including shipment information). See interact.gsa.gov/document/providing-order-status-gsa-advantage-orders-mandatory;
    • Only contracting officers or specialists have authority to place orders or modify the terms and conditions of your FSS contract. Do not accept orders or direction from non-authorized government representatives;
    • Get it in writing. Too often, FSS contractors fail to obtain contracting officer direction in writing. Months later, telling an auditor that the contracting officer called and told us to do X, Y, or Z will not win the day. If your contracting officer will not or does not have time to send it to you in writing, send a confirming email to your contracting officer;
    • If you did not get a contemporaneous record of any transaction or order that deviated from normal FSS terms and conditions, it is not too late. Go back and seek written confirmation from your contracting officer as soon as possible. Contracting officers can ratify prior actions and enter into retroactive contract orders and modifications;
    • Review orders for consistency with any existing Blanket Purchase Agreements (“BPAs”)—especially any changes in terms related to quantities, timing of deliveries, and locations. If an order varies from the terms of a BPA, ask the contracting officer for direction and/or a modification of BPA terms.
    • Notwithstanding the multiple emergency declarations, unless waived in writing, country of origin restrictions (primarily the Trade Agreements Act) are still applicable; and
    • Do not even think about charging prices higher than those on your FSS.

FSS vendors are vital federal government partners in responding to the COVID-19 pandemic. Following the suggestions above can mitigate the potential risk of not getting paid for such efforts and/or getting caught up in a costly subsequent agency audit.

As COVID-19 issues permeate virtually all aspects of commerce nationally and internationally, we stand ready to help. Blank Rome’s Coronavirus (“COVID-19”) Task Force includes interdisciplinary resources across every business sector from insurance recovery to HR.