GSA Schedule Prices No Longer Presumed Reasonable at DoD
Client Alert | less than 1 min read | 04.07.14
On March 13, 2014, DoD issued a class deviation to FAR 8.404(d) that could make orders under GSA Schedule contracts more burdensome for both contractors and DoD, directing that contracting officers can no longer rely upon GSA's determination of price reasonableness and must instead conduct their own price analysis using the techniques in FAR 15.404-1. When the award is not competitive, those price analysis techniques could include evaluation of prices charged in similar sales or, if it is the only means to determine that the price is reasonable, could even include obtaining cost data to support the pricing of these commercial contracts.
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As part of the 2012 America Invents Act, statutory estoppel was included to balance the interests of patent owners and patent challengers following an inter partes review (“IPR”). Estoppel prevents an IPR petitioner from later asserting in court that a claim “is invalid on any ground that the petitioner raised or reasonably could have raised” during the IPR. 35 U.S.C. § 315(e)(2). As applied, estoppel prevents petitioners from later relying in district court or in ITC proceedings on most patents or printed publications – the limited bases upon which petitioner can rely in an IPR. But a question remained, and contradictory district court decisions arose, as to whether petitioners would be estopped from relying on a prior art commercial product (known as “device art,” which could not itself have been raised in the IPR) even if a printed publication describing the product (i.e. a patent or technical manual) was available and presumably could have been raised.
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