[This article was last updated on November 17, 2020]
The General Services Administration (GSA) has stringent standards when it comes to the Country of Origin (COO) of products and services procured through Federal Supply Schedules (FSS). All GSA products and services must maintain Trade Agreements Act (TAA) compliance per Federal Acquisition Regulation (FAR) Clause 52.225-5. According to this clause, GSA contractors may only sell products and services which originate or are substantially transformed in TAA-compliant countries. However, in times of crisis, there are sometimes exceptions. In an effort to support the US government’s fight against COVID-19, GSA is temporarily allowing the procurement of non-TAA compliant products under FSS contracts. This exception is the result of GSA Senior Procurement Executive (SPE) Memo 2020-11.
GSA SPE Memo 2020-11
Due to the COVID-19 pandemic, demand for certain critical and essential supplies has increased so drastically that many contractors are not able to meet the requirements with TAA compliant products. In the interest of the health and safety of the American people, the GSA SPE has issued a Class Determination and Findings (D&F) citing non-availability as the basis for temporarily allowing the procurement of non-TAA compliant products under FSS contracts. This exception will only be effective from April 03, 2020 – December 31, 2020, unless otherwise amended. Please note: this exception was recently extended from September 30, 2020 to December 31, 2020.
This exception applies only to the following Federal Supply Classes (FSCs):
- FSC 4240 for N95 masks
- FSC 6810 for Sodium Hypochlorite (bleach)
- FSC 6840 for disinfectants including cleaners, sprays and wipes
- FSC 7930 for cleaners including sanitizing surface and floor cleaners
- FSC 8520 for hand sanitizers, soaps and dispensers
Non-TAA compliant items may be manufactured in any country except those listed in FAR Subpart 25.7, which prohibits most transactions involving Cuba, Iran, and Sudan, and most imports from Burma or North Korea. It is important to note that other applicable clauses remain in effect, such as FAR 52.203-23 Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky Lab and Other Covered Entities, and FAR 52.204-25 Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment.
Class Determination and Findings (D&F)
Determinations and Findings are defined in accordance with FAR Subpart 1.7 as “special forms of written approval by an authorized official that is required by statute or regulation as a prerequisite to taking certain contract actions.” The SPE’s determination to temporarily allow the procurement of non-TAA compliant products under FSS contracts was based on fact-specific and researched information by the Head of Contracting Activities (HCAs) in FAS Region 6 and Region 7. The HCA’s findings supported non-availability determinations for critical cleaning supplies and personal protective equipment. The determination was based upon the HCA’s findings in addition to the following statutes: Trade Agreements: FAR 25.403(c) insufficient quantity (19 U.S.C. 2512(a)(2)) and Buy American: FAR 25.103(b) (41 U.S.C. 8302(a)(2)).
TAA Compliance
Generally, all products sold under the GSA Multiple Award Schedule must be compliant with the Trade Agreements Act of 1979 (TAA). TAA was enacted to foster fair and open international trade and requires that government officials only procure goods manufactured in the US or an approved designated country. Designated countries include:
- World Trade Organization Government Procurement Agreement Countries
- Free Trade Agreement Countries
- Least Developed Countries
- Caribbean Basin Countries
For a full list of TAA Compliant Countries, visit our website.
In this unprecedented time, exceptions have been made, but they are explicit, temporary, and must be followed appropriately. Please note, this exception is specifically limited to items in direct support of COVID-19 response. This is not an open invitation for contractors to attempt to add any non-TAA product. Below is further explanation on how GSA MAS contractors may temporarily add these specific non-TAA compliant products.
How to Add Non-TAA Products to FSS Contracts
If you are a GSA contractor that would like to offer non-TAA compliant cleaning supplies and personal protective equipment under the designated FSCs, you may submit an Add SIN or Add Product Modification request in eMod. All proposed non-TAA compliant products must be part of the authorized FSC groups and in direct support of COVID-19. The modification must be stand-alone and may not include any other proposed offerings or modifications. Add modifications submitted in response to this effort must include language making it clear that the item is only on contract through August 1, 2020 unless the non-availability determination is extended. It is important to note that SPE Memo 2020-11 only allows for GSA contractors to modify existing schedule contracts. New schedule contracts will not be awarded for non-TAA compliant items.
Interested contractors must complete the GSA issued Modification Request Letter Template and Price Proposal Template to Add Non-TAA Compliant Products and submit the modification package via eMod. These templates cover the representations and certifications necessary to submit a compliant modification. Contractors should not update their representations and certifications in SAM.gov. Once the modification has been awarded to the GSA contract, contractors must complete a SIP/EDI upload to update their GSA Advantage! product catalog to include the awarded non-TAA compliant products. All non-TAA compliant awarded items must clearly state that they are only available for orders supporting COVID-19 response efforts through August 01, 2020 (unless extended). GSA will issue a unilateral modification to remove these products from all GSA contracts upon the expiration date of the non-availability determination. Contractors must complete another SIP/EDI upload to remove the non-TAA compliant products from their GSA Advantage! catalog immediately after this modification is issued.
Given the current circumstances, there may be a lot of information floating around for government contractors regarding efforts to combat the COVID-19 pandemic. The US Government heavily relies on the contracting community during times of national emergency, so staying informed is more important now than ever. Make Winvale’s weekly blog series and monthly newsletter your source for up-to-date critical information on the federal contracting space. Winvale provides expert assistance with Add SIN Modifications, Add Product Modifications, SIP/EDI Uploads and more. Contact your Winvale Consultant today for further support!
For more Coronavirus resources for government contractors visit our COVID-19 resource library.
