MORE FALLOUT FROM TRADE AGREEMENTS ACT RULING
GSA contracting officer’s may no longer rely solely on Customs and Border Protection (CBP) rulings on whether the products offered for sale on Schedule contracts meet the substantial transformation test to determine Trade Agreements Act (TAA) compliance. This is one of the developing issues in light of the Court of Federal Claims ruling in the Acetris case. The Court said that the CBP makes it determinations outside of the context of any specific procurement and, therefore, contracting officers should independently assess whether offered products meet the TAA standard. This could have a mixed impact on GSA Schedule determinations. On one hand, contracting officers are now able to consider company-provided information, on the other having to make a new determination will likely result in delayed awards, extensions, or modifications. GSA officials are already reviewing this case to determine how the new precedent will be adapted to Schedule contracts. The Claims Court ruling also added confusion to what a contractor must certify. The ruling made a distinction between “US made” and “TAA compliant”. In practice, many products have been considered to be “US made” if they were substantially transformed in the US, even from foreign components. The Court’s ruling did not seem to acknowledge that possibility. Schedule contractors with TAA questions should definitely consult counsel on the potential impact of Acetris on their Schedule offerings. Expect this situation to continue to develop.