GAO Decision Highlights Agency Discretion to Require Manufacturer Commercial Sales Data in FSS Contracting Even When Using Resellers

Earlier this month, the Government Accountability Office (GAO) issued an important decision relating to the use of resellers to sell medical devices on the Federal Supply Schedule (FSS) (Affirmative Solutions, LLC, B-402996, Sept. 8, 2010). In many cases medical device and other supply companies sell through resellers in order to avoid the disclosure and compliance burdens associated with contracting directly with the federal government. One such FSS disclosure requirement is central to this recent protest —specifically the requirement for a manufacturer to provide commercial sales practices (CSP) data along with a reseller's FSS offer. The Affirmative Solutions case delves into the level of commercial sales a reseller must demonstrate to insulate a manufacturer from having to supply its CSP data in connection with the reseller's FSS offer.

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