5 Things About GSA Contracts The Majority of Vendors Don’t Know

GSA Contracts are very different from your typical commercial contracts where a deal is a deal. The Government is absolutely different in this way, so knowing how it interprets GSA Contracts is crucial for long-term success with GSA. In this article we present some GSA facts you hardly knew.

1. GSA Advantage is not the only way for federal agencies to purchase

You surely know about GSA eBuy and GSA Advantage acquisition platforms where you can find GSA contracts for bid. What you probably didn’t know is that GSA contracting officers can actually buy products and services through Amazon too. Well, Amazon Business, actually.

Amazon Business was launched in 2015. Unlike its parent that targets B2C, Amazon Business works solely with companies, including government agencies. So any federal, state or local agency can purchase certain products using the Government Purchase Card. The Government Purchase Card is the preferred payment method for micro-purchases, it allows procurement officers to streamline the procurement process getting various simple but necessary things faster.

Why this is important:

The GPC Guidebook recommends that “cardholders should strongly consider using small and small disadvantaged businesses whenever possible”. So if your business is categorized as small or disadvantaged, Amazon Business is another good platform for you to reach governmental buyers.

2. The government may unilaterally and intentionally change the already signed GSA contract

Yep. While for all other fish in the sea “a deal is a deal”, the government can made changes to the already signed contract in a one-way fashion, at any moment. Not even taking the trouble of warning the contractor about such changes!

This is what the “Changes” clause of the GSA contract implies. Meet FAR 52.243-1:

(a) The Contracting Officer may at any time, by written order, and without notice to the sureties, if any, make changes within the general scope of this contract in any one or more of the following:

    (1) Description of services to be performed.

    (2) Time of performance (i.e., hours of the day, days of the week, etc.).

    (3) Place of performance of the services.

    (4) Drawings, designs, or specifications when the supplies to be furnished are to be specially manufactured for the Government, in accordance with the drawings, designs, or specifications.

    (5) Method of shipment or packing of supplies.

    (6) Place of delivery.

Sounds,… well, unfair.

However, the purpose of the “Change” clause is quite logical: the government reserves the right to quickly change the contract if this becomes necessary for some reason. For example, if agency’s priorities have changed, or in case of some force majeure. This is somewhat similar to the GSA Disaster Recovery Purchasing Program that permits agencies to purchase goods from any Schedule in emergency.

Not only does the “Change” clause modify the contract unilaterally, it also forces the contractor to fulfill the changed contract. So to prevent GSA contracting specialists from overusing the power of the “Change” clause (to completely rewrite everything in a contract, for instance), there is a self-limitation already built into the clause: changes must be within the general scope of the contract. This means if the contract says you must supply Wi-Fi routers, it cannot be changed so to make you supply laser printers instead. Also, changes must be relatively small and address the same type of work as the original contract.

However, if the changes force a GSA contractor to use its own resources instead of government’s resources (as the contract formulated originally) to fulfill the same type of work, such changes could be legitimate.

Why this is important:

Knowing what can and what cannot be changed allows you to dispute illegitimate changes to the contract. Also, knowing the contract can be changed to begin with, is important too.

3. Some clauses in the contract are still there, even if they are not

Once again, the government sets its own rules. In the business world, if some clause is removed from the contract, it is not applicable anymore. With GSA contracts, the so called Christian doctrine (named after G. L. Christian & Associates v. United States, 312 F.2d 418 (Ct. Cl. 1963) states that several mandatory clauses shall be read as if they are included to the contract, even if there are no such clauses in the contract.

Examples of such mandatory clauses are: “Termination”, “Payment”, “Affirmative Action”, “Equal Opportunity”, a small business set-aside clause that forces the small business contractor to do at least 50% of the work. And, of course, the “Change” clause we mentioned earlier.

Why this is important:

If the government contract does not explicitly say something, that does not mean you, as the contractor, should not do this.

4. Deadlines in the contract are not always real deadlines

Sometimes the GSA contract says that the contractor “must” do something within a limited period of time. For example, FAR 52.243-1 we already mentioned here says:

(c) The Contractor must assert its right to an adjustment under this clause within 30 days from the date of receipt of the written order. However, if the Contracting Officer decides that the facts justify it, the Contracting Officer may receive and act upon a proposal submitted before final payment of the contract.

Here, the text implies 30 days is a deadline that must be followed. However, in fact this deadline is merely a suggestion, not a requirement. A simple rule of thumb to tell whether the deadline is strict and must be observed or just a recommendation is asking yourself what are the consequences of not following the deadline. Typically, these consequences must be written as well as the deadline itself. If there is no harm to the government in case the contractor fails to meet the deadline and no specified consequences to the contractor either, such a deadline is merely a recommendation.

Why this is important:

Don’t believe in everything written in your contract with GSA. You can greatly simplify your life and further participation in the GSA Schedule program if you know how to read the contract properly.

5. The government may end the contract prematurely

Fun fact: if the government thinks keeping the contract active is inconvenient for the government, it can terminate the contract prematurely. This is what FAR 52.249-2 tells us. The clause is not applicable to services and supplies, but is applicable to construction.

The question is: what is the convenience of the government? There are two possible cases.

Termination for convenience may be the result of “cardinal changes” to the project. Let’s suppose the government estimated that some groundwork takes about 10% of the budget, and during the execution of the project turned out that this in fact will take 30%. This is a cardinal change to the project and the government may terminate the contract prematurely for convenience.

The second case is termination for convenience to run open competition again. For instance, if the initial estimation of the project budget turned out being too far away from the real budget. Instead of making changes to the existing contract, it is more convenient for the government to end it and publish another RFQ.

Importantly, contracting officers are not allowed to terminate contracts for convenience just to get a better deal for the same service from another source. This is considered termination “in bad faith”. The burden of proving the “bad faith”, however, is on the contractor.

Why this is important:

Finding government GSA contracts for bid is much easier than winning the contract. But even after the award, you still can suddenly find yourself out of business. What should you do to prevent this? Prepare beforehand.

Price Reporter has been successfully maintaining over 400 GSA contracts for years, and knows how to deal with all of the above issues carefully. Contact us if you need a consultation.