The GSA Multiple Award Schedule program is supposed to be for the acquisition of commercial solutions, maximizing the benefits of commercial business practices.  This has been a hallmark of the program since its inception and industry frequently uses the phrase “commercial terms for commercial items” to defend this position.  Such a position would be deemed quaint now with the issuance of a proposed rule last week that will essentially obviate any commercial term that conflicts, or appears to conflict with, a government rule.  GSA is moving beyond its established software EULA project and is now seeking to remove or subordinate any commercial terms that might conflict with a government mandate.

To be fair, commercial terms that conflict with statutorily-based rules may have to go.  The proposed rule, however, goes further than that to assume that any and all regulations take precedence over any and all commercial terms.  The proposed rule seeks a “one size fits all” solution that would take away an individual customer’s ability to negotiate special terms at the task order level.  Customers may decide, for instance, that a specific term can be altered, or a one-time waiver granted, because it is one small part of a total solution that is otherwise in the best interest of the government.  This would be a more flexible approach.  Instead, the proposed rule tells contractors, “Your best price, on our own terms, take it or leave it.”  It would be no surprise if some chose to “leave it” as the agency increasingly creates a business environment that imposes great, and ever-newer, costs on Schedule contractors, while at the same time using flawed pricing tools that, in turn, spur demands for lower prices.