Section 876 – GSA takes welcome steps towards innovation

This column was originally published on Roger Waldron’s blog at The Coalition for Government Procurement and was republished here with permission from the author.

This August, the General Services Administration took two significant, interconnected steps towards increasing competition and access to the commercial market through its government-wide contract vehicles.

First, as noted in our Aug. 28 blog, GSA issued an “Advance Notice of Proposed Rulemaking” (ANPR) regarding the implementation of Section 876, which authorizes civilian agencies to award multiple award contracts for services acquired on an hourly rate basis without considering price as an evaluation factor at the contract level. The ANPR seeks public comments that will assist in the implementation of Section 876 for the Federal Supply Schedule program. Comments on the ANPR are due on Sept. 18, 2020.

Second, on Aug. 14, GSA issued the ASTRO solicitation for manned, unmanned, and robotic platforms.  ASTRO marks the first use of the Section 876 authority by the agency. Simultaneously, GSA issued a Federal Acquisition Regulation deviation implementing Section 876 for its multiple award IDIQ contracts authorized by the Federal Acquisition Streamlining Act of 1994 (FASA). The scope of the deviation does not include regulations covering the FSS program, but it amends certain FAR language providing the baseline for use of the authority in connection with the ASTRO procurement. The FAR deviation is significant as, coupled with the ASTRO Section L and Section M, it provides insights into GSA’s thinking/approach regarding full Section 876 implementation.

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ASTRO is a thoughtful, appropriate first use of the authority. Lessons learned and practices developed in conducting the procurement can be replicated in future procurements, and they will inform future rule-making and the creation of governmentwide contracting frameworks implementing Section 876. ASTRO is, in a sense, a “procurement innovation lab” for Section 876.

Again, Section 876, Increasing Competition At The Task Order, of the 2019 National Defense Authorization Act (NDAA), enhances/increases competition and access to the commercial market by authorizing multi-award IDIQ contracts for services where the pricing and value are determined through competition for specific customer agency task order requirements. By so doing, it eliminates the requirement to consider price at the contract award level. In addition, because it reduces the administrative and often arbitrary processes associated with the evaluation of contract-level pricing under multiple award IDIQs, including the FSS program, Section 876 can be a game charger for customer agencies, GSA, and industry!

Section 876 will reduce barriers to entry for small businesses, allowing them to bring new capabilities directly to the federal market. Correspondingly, it will increase access to innovative solutions from across the commercial market by eliminating an artificial barrier to entry. Additionally, implementation of Section 876 will focus the FSS program on commercial best practices, continuing the march away from bureaucratic, non-competitive practices, like cost-build negotiations of contract service rates. Section 876 will have a cascading impact, reducing burdensome administrative contract costs, allowing customer agencies and industry to focus on competition for and performance of mission requirements.

GSA’s Mark Lee, assistant commissioner for the Office of Policy and Compliance at the Federal Acquisition Service, highlighted the benefits of, and interest in, this acquisition streamlining authority in his recent blog, “FAS Works to Enhance Competition.” Importantly, Mark highlighted the interplay between the ASTRO procurement and the ANPR in supporting implementation of Section 876.  Coalition members look forward to working with all stakeholders towards a sound, holistic implementation of Section 876 that enhances value for customer agencies and the American people.