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In a move that has been expected for some time, the General Services Administration (GSA) announced on January 12, 2021 that it will remove all drones (as defined by 49 U.S.C. Ch. 448) from Multiple Award Schedule (MAS) contracts, except those drones approved by the Department of Defense (DoD) Defense Innovation Unit (DIU) through its “Blue sUAS” Program. The move represents the latest action by the federal Government to address national security threats from China.

In its post on GSA Interact, the agency explained the increased use of drones poses unique challenges and risks, including surveillance, theft, disruption and/or use of selective federal information or federal information networks. GSA also underscored the increased risk of non-compliance with existing procurement laws like the Trade Agreements Act (TAA) and Section 889 of the FY ‘19 National Defense Authorization Act (NDAA).

China’s current dominance in drone manufacturing lies at the center of the Government’s concerns. The TAA operates to prohibit the Government’s purchase of items made in China and other countries that are not members of the World Trade Organization Government Procurement Agreement (WTO GPA), or that do not participate in a covered trade agreement with the United States. Section 889 of the FY ‘19 NDAA bars both the Government and government contractors from buying or using certain Chinese-made telecommunications and video surveillance equipment or services where the manufacturers have been identified as being linked to the Chinese government or military. A recognition of the threats posed by these types of Chinese-made products also clearly motivated the prohibition against operating or procuring Chinese-made drones set forth in Section 848 of the FY ‘20 NDAA.

DIU’s Blue sUAS Program responded to the same risks by supporting the development of trusted small Unmanned Aerial Systems (sUAS) for the broader DoD and federal Government partners. On August 20, 2020, an eighteen-month program culminated in the DIU’s announcement of the availability of five U.S.-manufactured drone configurations to provide secure, trusted Blue sUAS options to the U.S. Government. DIU’s Director, Mike Brown, explained, “We need an alternative to Chinese-made small drones and Blue sUAS is a first step in achieving that objective.”

According to Nextgov, GSA plans to have all non-Blue sUAS drones removed from its MAS contracts by February 1, 2021. In addition, the aforementioned GSA Interact post promised a solicitation refresh in the coming months that will clarify that no drones, other than Blue sUAS approved drones, will be awarded to MAS contracts at this time. The agency will post a 30 day Advance Notification to GSA Interact prior to that solicitation refresh.

If you have questions about this advisory contact the author or your Stinson counsel.