Surprise, Surprise, Congress Does Listen — Well, Kind Of

An Analysis of NDAA Section 846’s Online Marketplace Provisions

There has been a lot of speculation about the future of commercial items purchasing within the federal Government since Representative Mac Thornberry circulated his “Section 801” proposal to hand over the bulk of DOD COTS purchasing to one or two existing online commercial marketplaces. (See Section 801 article HERE). Industry groups mobilized, companies called their legislators, and the media contributed several stories describing the wide spread criticism of the House NDAA proposal. To the surprise of many, however, the Senate seems to have heard industry’s concerns – or at least some of them.

The compromise language that just emerged from the House/Senate Conference, designated Section 846 of the 2018 NDAA, reflects significant improvements from the original Thornberry bill. While the new compromise language still moves the Government significantly down the path toward the creation of an online marketplace, which almost certainly will change the way DOD (and likely other federal agencies) will purchase COTS items, the new approach resolved many of the most problematic provisions of the original House bill.

Unlike Section 801, which contemplated a quick, non-competitive award to an existing commercial marketplace provider to handle DOD COTS purchasing, Section 846 directs OMB and GSA to create a phased-in implementation plan and schedule to develop, evaluate, and implement the new online marketplaces (now called “ecommerce portals”) over the better part of three years. The new language identifies a three-phase approach.

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