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The 2018 NDAA contains an interesting provision being dubbed "The Amazon Amendment", which is described in Section 801  as  "....a program to procure commercial products through online marketplaces for purposes of expediting procurement and ensuring reasonable pricing of commercial products." (http://thecgp.org/images/Section-801-2018-NDAA.pdf)

Key Provisions:

  • "...is used widely in the private sector, including in business-to-business e-commerce..."
  • "...enables offers from multiple suppliers on the same or similar products..."
  • "...a procurement of a product made through an online marketplace under the program...is deemed to satisfy requirements for full and open competition...[and] to be an award of a prime contract for purposes of the goals established under section 15(g) of the Small Business Act.."
  • "....shall be made under the standard terms and conditions of the marketplace relating to purchasing on the marketplace..."
  • "...the award of a contract to an online marketplace provider ... may be made without the use of full and open competition."
  • "...the Comptroller General of the United States  shall submit... a report on small business participation..."

It seems obvious that Section 801 is implicitly referring to familiar online retailers such as Amazon, but it also seems companies like Grainger might also be included in the potential stable of eCommerce providers.  It's notable that they have acknowledged the potential effect on small business and are creating a reporting requirement to capture that.  

Is this innovation, or predation?

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Contractors in the construction business don’t generally pay Grainger catalog “list” prices, in my experience.  The government shouldn’t either.  

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Well dang it I thought this new provision provided an opportunity with regard to this discussion (referenced below)  and then I read closely and lo and behold not yet!   Why?   Well to my amazement  the provision has added a new definition to commercial item acquisition that  appears to have left Kickstarter by the wayside.   And really "Commercial Product" now means a COTS item that is not a service?  Too bad Kickstarter not yet and come on bill writers try using familiar and already defined words and quit inventing new ones!   

 

COMMERCIAL PRODUCT.The term ‘‘com-

8 mercial product’’ means a commercially available off-

9 the-shelf item, as defined in section 104 of title 41,

10 United States Code, except the term does not in-

11 clude services.

12

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Articles on the issue have referred to it as Sec. 801 because that is where it was in the version of the bill the House originally passed.  However the final bill that passed Congress and was signed by the President moved it to Sec. 846 and changed the title slightly to "procurement through commercial e-commerce portals".  It uses the term "portals" instead of "marketplaces."  The original bill required DoD to use it.  The final version states that agencies "may" use it.  Also, some of the criteria listed in the original post that were in the original bill are not actually present in the final law.  I even saw an article published yesterday on another site that referred to Sec. 801.   Implementation and reporting phases and requirements were added, etc.  I haven't read the full versions of each to see what all the differences are or how meaningful they are, but I would not rely on articles that refer to it as Sec. 801 as the information it is based on may not be what is in the law.

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Below is Rule 2 from Terms Of Use:

Quote

2. No attacks on a private entity that could be construed as "defamation." No attacks on any individual person, whether in a private or public position, that could be construed as "defamation." These posts will be removed as soon as they are seen.

I have completed my review and have deleted posts dealing with the discussion of an entity.  I also removed a citation to an old IG report. 

Feel free to discuss Section 846.

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19 hours ago, bob7947 said:

Below is Rule 2 from Terms Of Use:

I have completed my review and have deleted posts dealing with the discussion of an entity.  I also removed a citation to an old IG report. 

Feel free to discuss Section 846.

Sorry Bob - Thanks for the reminder.

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After it was colloquially referred to as the "Amazon Amendment," industry and some government pushed back. That's why the later and final versions use the plural "marketplaces" and "portals," and "multiple contracts with multiple commercial e-commerce portal providers."

GSA held an open forum about this in January, and representatives from Amazon, Overstock, and Staples had speaking roles.

Here are several options (forgive the sloppy terminology, PepeTheFrog is using brands to illustrate the poorly described concepts):

(a) millions of suppliers who sell through a single platform, like Amazon

(b) the platform is the only provider or seller and the suppliers are "funneled through" the platform, like Staples, where you are clearly buying everything from Staples

(c) the platform is not fulfilling any orders at all, but only facilitates the transactions by searching and connecting, like Ariba or Kayak with airlines 

These choices are relevant to the concept of privity of contract and who will be considered the prime contractor or subcontractor. The industry representatives had slightly different answers on the question of "When a customer buys from you, who is the prime contractor and who has privity of contract?"

This will be especially relevant for small business requirements. PepeTheFrog has heard Congress Critters and their underlings say that they want a system where if you use the e-commerce portal to purchase from an Amazon supplier which is a small business, that should count towards the 23% small business set-aside goal for the agency. If that idea is written into law or implemented into regulation, PepeTheFrog is predicting headlines to the effect of "Federal government now considers Amazon a small business" and "Jeff Bezos: billionaire small business owner, according to Congress."

Here is the transcript:

https://interact.gsa.gov/sites/default/files/Transcript Comml Portal Public Meeting (1092018).pdf

 

 

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Solution: Make all such purchases subject to the Uniform Commercial Code, instead of federal procurement statutes and regulations, and make them exempt from protests.

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Vern, PepeTheFrog likes this idea. Cut the Gordian knot, instead of using Rube Goldberg "fixes" and "exemptions."

PepeTheFrog is now looking at his webbed hand's timepiece, waiting for a naysayer to hop in and bring up all the statutes or government policies Vern Edwards' solution will subvert, thus entirely missing the point...

But what about the Anti-Deficiency Act and EULAs? What about click-through licenses and actual authority? What about, what about, what about...

 

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