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SEC. 846. PROCUREMENT THROUGH COMMERCIAL
E-COMMERCE PORTALS. (a)
Establishment Of Program.—The Administrator shall establish a
program to procure commercial products through commercial
e-commerce portals for purposes of enhancing competition,
expediting procurement, enabling market research, and ensuring
reasonable pricing of commercial products. The Administrator
shall carry out the program in accordance with this section,
through multiple contracts with multiple commercial e-commerce
portal providers, and shall design the program to be implemented
in phases with the objective of enabling Government-wide use of
such portals.
(b) Use Of Program.—The head of a department or agency may
procure, as appropriate, commercial products for the department
or agency using the program established pursuant to subsection
(a).
(c) Implementation And Reporting Requirements.—The Director of
the Office of Management and Budget, in consultation with the
Administrator and the heads of other relevant departments and
agencies, shall carry out the implementation phases set forth
in, and submit to the appropriate congressional committees the
items of information required by, the following paragraphs:
(1) PHASE I: IMPLEMENTATION PLAN.—Not
later than 90 days after the date of the enactment of this
Act, an implementation plan and schedule for carrying out the
program established pursuant to subsection (a), including a
discussion and recommendations regarding whether any changes
to, or exemptions from, laws that set forth policies,
procedures, requirements, or restrictions for the procurement
of property or services by the Federal Government are
necessary for effective implementation of this section.
(2) PHASE II: MARKET ANALYSIS AND CONSULTATION.—Not later than
one year after the date of the submission of the
implementation plan and schedule required under paragraph (1),
recommendations for any changes to, or exemptions from, laws
necessary for effective implementation of this section, and
information on the results of the following actions:
(A) Market analysis and initial
communications with potential commercial e-commerce portal
providers on technical considerations of how the portals
function (including the use of standard terms and conditions
of the portals by the Government), the degree of
customization that can occur without creating a
Government-unique portal, the measures necessary to address
the considerations for supplier and product screening
specified in subsection (e), security of data,
considerations pertaining to nontraditional Government
contractors, and potential fees, if any, to be charged by
the Administrator, the portal provider, or the suppliers for
participation in the program established pursuant to
subsection (a).
(B) Consultation with affected departments and agencies
about their unique procurement needs, such as supply chain
risks for health care products, information technology,
software, or any other category determined necessary by the
Administrator.
(C) An assessment of the products or product categories that
are suitable for purchase on the commercial e-commerce
portals.
(D) An assessment of the precautions necessary to safeguard
any information pertaining to the Federal Government,
especially precautions necessary to protect against national
security or cybersecurity threats.
(E) A review of standard terms and conditions of commercial
e-commerce portals in the context of Government
requirements.
(F) An assessment of the impact on existing programs,
including schedules, set-asides for small business concerns,
and other preference programs.
(3) PHASE III: PROGRAM IMPLEMENTATION
GUIDANCE.—Not later than two years after the date of the
submission of the implementation plan and schedule required
under paragraph (1), guidance to implement and govern the use
of the program established pursuant to subsection (a),
including protocols for oversight of procurement through the
program, and compliance with laws pertaining to supplier and
product screening requirements, data security, and data
analytics.
(4) ADDITIONAL IMPLEMENTATION PHASES.—A description of
additional implementation phases, as determined by the
Administrator, that includes a selection of agencies to
participate in any such additional implementation phase (which
may include the award of contracts to multiple commercial
e-commerce portal providers).
(d) Considerations For Commercial
E-Commerce Portals.—The Administrator shall consider commercial
e-commerce portals for use under the program established
pursuant to subsection (a) that are widely used in the private
sector and have or can be configured to have features that
facilitate the execution of program objectives, including
features related to supplier and product selection that are
frequently updated, an assortment of product and supplier
reviews, invoicing payment, and customer service.
(e) Information On Suppliers, Products, And Purchases.—
(1) SUPPLIER PARTICIPATION AND PRODUCT
SCREENING.—The Administrator shall provide or ensure
electronic availability to a commercial e-commerce portal
provider awarded a contract pursuant to subsection (a) on a
periodic basis information necessary to ensure compliance with
laws pertaining to supplier and product screening as
identified during implementation phase III, as described in
subsection (c)(3).
(2) PROVISION OF ORDER INFORMATION.—The Administrator shall
require each commercial e-commerce portal provider awarded a
contract pursuant to subsection (a) to provide order
information as determined by the Administrator during
implementation phase II, as described in subsection (c)(2).
(f) Relationship To Other Provisions Of
Law.—
(1) All laws, including laws that set
forth policies, procedures, requirements, or restrictions for
the procurement of property or services by the Federal
Government, apply to the program established pursuant to
subsection (a) unless otherwise provided in this section.
(2) A procurement of a product made through a commercial
e-commerce portal under the program established pursuant to
subsection (a) is deemed to be an award of a prime contract
for purposes of the goals established under section 15(g) of
the Small Business Act (15 U.S.C. 644(g)), if the purchase is
from a supplier that is a small business concern.
(3) Nothing in this section shall be construed as limiting the
authority of a department or agency to restrict competition to
small business concerns.
(4) Nothing in this section shall be construed as limiting the
applicability of section 1341 of title 31, United States Code
(popularly referred to as the Anti-Deficiency Act).
(g) Use Of Commercial Practices And
Standard Terms And Conditions.—A procurement of a product
through a commercial e-commerce portal used under the program
established pursuant to subsection (a) shall be made, to the
maximum extent practicable, under the standard terms and
conditions of the portal relating to purchasing on the portal.
(h) Disclosure, Protection, And Use Of Information.—In any
contract awarded to a commercial e-commerce portal provider
pursuant to subsection (a), the Administrator shall require that
the provider—
(1) agree not to sell or otherwise
make available to any third party any information pertaining
to a product ordered by the Federal Government through the
commercial e-commerce portal in a manner that identifies the
Federal Government, or any of its departments or agencies, as
the purchaser, except if the information is needed to process
or deliver an order or the Administrator provides written
consent;
(2) agree to take the necessary precautions to safeguard any
information pertaining to the Federal Government, especially
precautions necessary to protect against national security or
cybersecurity threats; and
(3) agree not to use, for pricing, marketing, competitive, or
other purposes, any information related to a product from a
third-party supplier featured on the commercial e-commerce
portal or the transaction of such a product, except as
necessary to comply with the requirements of the program
established pursuant to subsection (a).
(i) Simplified Acquisition Threshold.—A
procurement through a commercial e-commerce portal used under
the program established pursuant to subsection (a) shall not
exceed the simplified acquisition threshold in section 134 of
title 41, United States Code.
(j) Comptroller General Assessments.—
(1) ASSESSMENT OF IMPLEMENTATION
PLAN.—Not later than 90 days after the Director of the Office
of Management and Budget submits the implementation plan
described in subsection (c)(1) to the appropriate
congressional committees, the Comptroller General of the
United States shall submit to the appropriate congressional
committees an assessment of the plan, including any other
matters the Comptroller General considers relevant to the
plan.
(2) ASSESSMENT OF PROGRAM IMPLEMENTATION.—Not later than three
years after the first contract with a commercial e-commerce
portal provider is awarded pursuant to subsection (a), the
Comptroller General of the United States shall submit to the
appropriate congressional committees a report on the
challenges and benefits the General Services Administration
and participating departments and agencies observe regarding
implementation of the program established pursuant to
subsection (a). The report shall include the following
elements:
(A) A description of the acquisition
of the commercial e-commerce portals (including the extent
to which the portals had to be configured or otherwise
modified to meet the needs of the program) costs, and the
implementation schedule.
(B) A description of participation by suppliers, with
particular attention to those described under subsection
(e), that have registered or that have sold goods with at
least one commercial e-commerce portal provider, including
numbers, categories, and trends.
(C) The effect, if any, of the program on the ability of
agencies to meet goals established for suppliers and
products described under subsection (e), including goals
established under section 15(g) of the Small Business Act
(15 U.S.C. 644(g)).
(D) A discussion of the limitations, if any, to
participation by suppliers in the program.
(E) Any other matters the Comptroller General considers
relevant to report.
(k) Definitions.—In this section:
(1) ADMINISTRATOR.—The term
“Administrator” means the Administrator of General Services.
(2) APPROPRIATE CONGRESSIONAL COMMITTEES.—The term
“appropriate congressional committees” means the following:
(A) The Committees on Armed Services
of the Senate and House of Representatives.
(B) The Committee on Homeland Security and Governmental
Affairs of the Senate and the Committee on Oversight and
Government Reform of the House of Representatives.
(C) The Committee on Small Business and Entrepreneurship of
the Senate and the Committee on Small Business of the House
of Representatives.
(3) COMMERCIAL E-COMMERCE PORTAL.—The
term “commercial e-commerce portal” means a commercial
solution providing for the purchase of commercial products
aggregated, distributed, sold, or manufactured via an online
portal. The term does not include an online portal managed by
the Government for, or predominantly for use by, Government
agencies.
(4) COMMERCIAL PRODUCT.—The term “commercial product” means a
commercially available off-the-shelf item, as defined in
section 104 of title 41, United States Code, except the term
does not include services.
(5) SMALL BUSINESS CONCERN.—The term “small business concern”
has the meaning given such term under section 3 of the Small
Business Act (15 U.S.C. 632).
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Procurement through commercial
e-commerce portals (sec. 846)
The House bill contained a provision
(sec. 801) that would require to contract with multiple
commercial online marketplaces for the procurement of certain
commercial-off-the-shelf (COTS) products; directs the use of
certain criteria to select providers, including the ability to
screen suppliers in accordance with law and regulation; and
would require the Comptroller General of the United States to
report on small business participation in the marketplaces.
The Senate amendment contained no
similar provision.
The Senate recedes with an amendment
that would require an implementation plan and a corresponding
review by the Comptroller General of the United States, increase
the General Services Administration's flexibility to implement
through a phased approach, direct the submission of requests for
exceptions, and limits initial implementation to procurement of
items in contract amounts below the Simplified Acquisition
Threshold.
The conferees note that this effort to
align the government's requirements with available commercial
e-commerce portals provides unique opportunities and will pose
challenges during implementation. It will require diligence in
uncovering all of the potential implications, to include a full
accounting of existing business processes and procedures that
currently comprise those in place to conduct the procurements as
well as those in place to comply with existing law and
regulation. It will also require a robust understanding of the
technical features of the commercial e-commerce portals.
The conferees encourage the
Administrator, General Services, to resist the urge to make
changes to the existing features, terms and conditions, and
business models of available e-commerce portals, but rather
demonstrate the government's willingness to adapt the way it
does business. Pursuant to a diligent review of existing law and
regulation, the conferees direct the Administrator to be
judicious in requesting exceptions.
The conferees further direct the
Administrator to take great care in selecting which federal
agencies and departments participate in the initial rollout
phase with the expectation that the Administrator will include
the Department of Defense. The conferees are aware of various
fee-based and other business-to-business arrangements to feature
products offered by certain vendors in many commercial
e-commerce portals. The conferees expect the Administrator to
ensure that any contract of other agreement entered into for
commercial e-commerce portals under this program preclude such
business-to-business arrangements.
Finally, the conferees expect the
Administrator to place particular emphasis on preventing
suspended and debarred contractors from participation, and
ensuring the appropriate participation of small and
disadvantaged businesses as required under current law and
regulation. |
