In a Class Determination and Findings (CD&F) published on April 3, 2020, the GSA’s Senior Procurement Executive directed that certain limited supplies to combat the COVID-19 virus identified in the CD&F may be acquired without regard to the domestic preference restrictions imposed by the Trade Agreements Act (TAA) and the Buy American Act (BAA) clauses included in the GSA Schedule and GSA individual procurements. The Senior Procurement Executive concluded that waivers of the domestic preference restrictions were warranted based on scarcity in that the supplies were deemed “temporarily unavailable in sufficient quantity or satisfactory quality” or not “mined, produced, or manufactured in the United States in sufficient and reasonably commercial quantities of a satisfactory quality.”
The CD&F applies to purchases at any dollar value, is effective through July 1, 2020, and extends only to the following general products (identified by their Federal Supply Classes (FSCs)):
- N95 masks – FSC 4240
- Sodium hypochlorite (bleach) – FSC 6810
- Disinfectants including cleaners, sprays and wipes – FSC 6840
- Cleaners including sanitizing surface and floor cleaners – FSC 7930
- Hand sanitizers, soaps and dispensers – FSC 8520
Under the CD&F, these products may be manufactured in any country, including China, except those listed in FAR subpart 25.7 (i.e., Cuba, Iran, Sudan, Burma and North Korea).
The CD&F goes on to note:
- The issuance of new contracts or schedule awards should be avoided. Instead, contracting officers are encouraged to modify their contracts to reflect the CD&F and its limited time frame.
- Rated orders may be issued for non-TAA-compliant items under the CD&F.
- For non-Federal Supply Schedule GSA contracts, new contracts may be awarded or contract modifications issued, but these must be signed no later than June 30, 2020, and “shall be as short of a duration as feasible to ensure adequate supply is obtained.”
Although the CD&F relaxes significant restrictions on the acquisition of certain foreign goods, federal contractors cannot assume they can immediately begin selling noncompliant products under existing GSA contracts. Instead, citing the appropriate guidance and deviations, affected contractors should reach out to engage their contracting officers to ensure their contract has been appropriately modified consistent with the CD&F. Similarly, contractors with manufacturing or supply chain capabilities in countries beyond those covered by the TAA (e.g., India) who have available products that are included on the list should immediately contact their respective contracting officers to request a modification to take advantage of this opportunity.