GSA Schedules Open Market Items

Contractors that receive a General Services Administration (“GSA”) Multiple Award Schedule (“MAS”) Program contract publish a price list that contains all the products and services that have been negotiated and agreed.  The prices for the items on the price list are deemed to be fair and reasonable by the GSA and are available for purchase by agencies.  Buyers may issue orders for these supplies and services bypassing many onerous acquisition regulations.

The GSA Price List includes certain the contractor’s products and services. The rules generally allow users to purchase the listed items. Buyers frequently added non-price list items to delivery / task orders to complete

the order requirements.  These non-schedule items are called “open market” items.  These “open market” items were intended to be incidental to the purpose and statement of work in a task order.  For many years there was no clear definition of an “open market” item, so many contracting officers set their own rules.

In 1997 the Court of Federal Claims (“COFC”) decided a protest¹ against the Army finding that it failed to comply with the Competition in Contracting Act (“CICA”)². The Court of Federal Claims awarded an injunction to ATA Defense Industries terminating a purchase Order that had been awarded to a competitor under its GSA Schedule that contained approximately 35% of the products, i.e., open market items, were not carried on the MAS contract. The COFC ruled that unless a product or service can be classified within an exception to the competition requirements in the CICA, or can be classified as de minimus, then the products or services must be purchased on a competitive basis.

Two years later the Government Accountability Office (“GAO”) decided³ a protest that implemented the earlier COFC decision, sustained the protest, and overturned an Army purchasing decision by ruling that when the value of open market


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