GSA’s Transactional Data Rule – What You Need to Know

Breakout Session #: A11

Jeff Clayton and Rob Austin

Date: Monday, July 25

Time: 11:15am–12:30pm

GSA Begins Pilot Program for Transactional Data Reporting (TDR) From the Final Rule announced on June 23rd:

– “GSA will introduce a new Transactional Data Reporting clause to its FSS contracts in phases, beginning with a pilot for select Schedules and Special Item Numbers. Participating vendors will no longer be subject to the existing requirements for Commercial Sales Practices (CSP) disclosures and Price Reductions clause (PRC) basis of award monitoring, resulting in a substantial burden reduction… These actions represent the most significant change to the Schedules program in the past two decades.”

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Polling Question Instructions

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Text JEFFREYCLAYT124 to the five-digit number 22333 to join session Text your answer to 22333. Only one response per poll.

– Standard text messaging rates apply – No spamming – Completely anonymous

Questions during the presentation? Text them to 22333

Polling Question

Which of your speakers is an avid record/vinyl and music

memorabilia collector ?

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Where did you travel from?

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Would you rather learn about TDR requirements or head to

lunch?

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Introduction

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Rob Austin, CFCM Director

Jeff Clayton Principal

Agenda

• Overview of TDR pilot program • New Pricing Model for GSA • Remaining Questions • Best Practices for Compliance

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Overview of TDR Pilot Program – Affected Contracts • Will be piloted on select GSA Schedules

– 03FAC Facilities Maintenance and Management – 51V Hardware Superstore – 58I Professional Audio/Video – 72 Furnishing and Floor Coverings – 73 Food Service – 75 Office Products – 00CORP PSS (PES SINs only) – 70 IT (Equipment, Software, and COMSATCOM

SINs only)

• Also available for other GWACs and IDIQs

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Overview of TDR Pilot Program – Required Fields • Contractors will submit monthly reports

with the following information: – Contract or BPA number – Delivery / task order number / PIID – Non-federal entity – Description of deliverable – Manufacturer name and part number – Unit measure – Quantity of item sold – UPC – Price paid per unit and total price

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Contractor

• No longer required to submit CSP disclosures

• Relieved from Basis of Award monitoring obligations under the (PRC)

Government • Greater visibility into prices

paid for products and services at the order level

• Allows for a more dynamic pricing model to ensure competitive prices relative to other vendors

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Overview of TDR Pilot Program – Key Benefits

Polling Question

Do you hold one of Contracts / SINs affected by the TDR pilot?

A. Yes B. No C. Not yet, but we intend to soon D. N/A (e.g., Government, Media)

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New Pricing Model for GSA

• Previously, CSP disclosures positioned GSA to receive favorable prices compared to commercial customers (“vertical” model)

• New data-based model looks only at prices achieved in the Government marketplace (“horizontal” model)

• Contractors subjected to horizontal pricing comparisons understand how these reviews can impact pricing negotiations

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New Pricing Model for GSA

• GSA Acquisition Manual (GSAM) is being updated to emphasize the use of this price data during negotiations – The language still states that the Government is

looking for the “best value”, not simply the lowest price

• GSA still retains the right to request additional information, including other than certified cost and pricing data

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Remaining Questions – Pricing Negotiations • While GSAM updates are forthcoming,

uncertainty remains regarding how COs will use this information, and how/if they will be able to account for: – Items with limited (or zero) sales – Fixed-price orders – Services, particularly those without standardized

labor categories – Differing terms and conditions

• For PSS and IT70 Contractors with both affected and non-affected SINs, what is required for non-affected SINs?

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Remaining Questions – OIG’s Role • While the OIG will no longer be reviewing

CSP disclosures and PRC monitoring policies for these Contracts / SINs, they have indicated they will be reviewing the transactional data

• GSA OIG may still request commercial pricing data during pre-award audits

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Remaining Questions – Public Data File • GSA has indicated it intends to make some

of this data available to the public – Data file would include information that would

otherwise be available through FOIA

• Potential open access to purchase price

information under FSS contracts could have a significant impact on government and commercial markets

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Polling Question

Based on what you knew of the rule before today, or based on our discussion today, do you believe the TDR is:

A. An improvement for Government B. An improvement for companies selling through the Schedules? C. An improvement for both parties? D. Neither

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Best Practices – Complying with the TDR • Ensure that systems / processes enable

monthly reporting that is timely and accurately

• Identify system(s) necessary to capture the data and maintain its integrity

• Think strategically about how this reporting will impact pricing and sales objectives

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Best Practices – Pricing Policies • Continue to be mindful of commercial sales

practices – Commercial data or policies may still be

requested by the CO or OIG and could impact pricing objectives

• Consider government discounting policies as well – Discounted government sales at low prices may

cause GSA to push for lower baseline contract prices

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Questions?

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Jeff Clayton, Principal jeff.clayton@bakertilly.com

Jeff Clayton is a principal in the Government Contractor Advisory Services Practice at Baker Tilly. He has more than seventeen years experience providing a broad range of pricing (GSA/VA Schedules and other commercial item contracts), contract compliance and dispute/litigation related services to government contractors and their legal counsel. Jeff has extensive experience working with contractors and their counsel during Office of Inspector General (OIG) audits, Department of Justice (DOJ) investigations, and in defense of qui tam suits brought under the False Claims Act.

Rob Austin, Director rob.austin@bakertilly.com

Rob is a director in the Government Contractor Advisory Services Practice at Baker Tilly. He has more than ten years of experience providing specialized pricing, compliance, negotiation, audit and litigation support services to government contractors across a variety of industries Rob significant experience supporting FSS contractors through the Mandatory Disclosure program and providing litigation support in support Federal False Claims Act allegations.

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