FEDERAL CIRCUIT WARNS CONTRACTING OFFICERS: MEET YOUR NEEDS WITH COMMERCIAL ITEMS FIRST

In 1994, Congress passed the Federal Acquisition Streamlining Act (“FASA”), Pub. L. No. 103-355, and included, codified as amended at 10 U.S.C. § 2377, a requirement that federal agencies, to the maximum extent practical, procure commercially available items and technology to meet their needs. A recent case, Palantir USG, Inc. v. United States, No. 2017-1465 (Fed. Cir. 2018), 2018 WL 4356686 emphasizes the importance of agency adherence to this strong preference for the consideration of commercial items, if they are available. Palantir concludes that even though the Army was on notice that Palantir’s product might be a commercial item that could satisfy its requirements for software for a “Distributed Common Ground System,” the Army did not use its market research results rationally, and excluded commercial … Continue reading

GAO JURISDICTION EXTENDS TO PROCUREMENT LAWS AND REGULATIONS BUT NOT QUESTIONS OF FISCAL LAW OR THE ANTI-DEFICIENCY ACT

In an Army procurement for web-based postage, Pitney Bowes, Inc., B-416220, July 11, 2018, the Government Accountability Office (“GAO”) recently made clear that its bid protest jurisdiction extends to violations of procurement laws and regulations, and does not generally extend to questions of fiscal law or regulation. Indeed, 31 U.S.C. § 3552, which provides GAO with its authority to consider and make recommendations on bid protests, states as follows: “A protest concerning an alleged violation of a procurement statute or regulation shall be decided by the Comptroller General [GAO] if filed in accordance with this subchapter.” (Emphasis added). In its protest, Pitney-Bowes had argued that the proposal submitted by the awardee of the contract, Stamps.com, violated fiscal law and regulation by proposing to purchase postage … Continue reading

GAO: AGENCY MISTAKES IN BID PROTESTS

For nearly a century, the Government Accountability Office (“GAO”) and its predecessor, the General Accounting Office, have provided an independent, impartial, and objective forum for bid protests on federal government solicitations and contracts. A bid protest is a written objection by an interested party to: A solicitation or other request by a Federal agency for offers for a contract for the procurement of property or services; The cancellation of such a solicitation or other request; An award or proposed award of a contract; A termination or cancellation of an award of a contract, if the written objection contains an allegation that the termination or cancellation is based in whole or in part on improprieties concerning the award of the contract; or Conversion of a function … Continue reading

ALLOWING ONLY 44 MINUTES TO RESPOND TO A SOLICITATION?

You may think that allowing offerors only 44 minutes to respond to a solicitation for quotations is too short a time, but the Government Accountability Office (“GAO”) held that it was acceptable where emergency circumstances in connection with inclement weather warranted the short response time. AeroSage, LLC, B-415893, 4, April 17, 2018. The Defense Logistics Agency (“DLA”) was procuring diesel fuel to meet Department of Veterans Affairs (“VA”) fuel requirements for a VA Medical Center. After issuing a “sources sought” email on January 4, 2018, the VA assessed whether the diesel heating fuel could be placed under a long-term DLA contract for another VA medical center, but concluded that it could not. However, VA and DLA concluded that DLA could place the order as a … Continue reading

WHEN IS A TASK ORDER OUT OF SCOPE?

Two recent Government Accountability Office (“GAO”) bid protest decisions are interesting because in both cases, the GAO held that a task order issued by the agency was outside the scope of either the underlying Indefinite Delivery, Indefinite Quantity (“IDIQ”) contract, or outside the scope of the task order itself. The cases are Western Pilot Service et al, B-415732 et al, March 6, 2018, involving an air tanker procurement by the Department of Interior Bureau of Land Management (“BLM”), and Alliant Solutions, LLC, B-415994, May 14, 2018, involving a General Services Administration (“GSA”) Government Wide Acquisition Contract. When an agency seeks to procure something using an underlying contract or a task order, the product or service sought must be within the scope of the contract or … Continue reading

EXTEND YOUR OFFER OR PROTEST

An offer on a government contract is normally subject to a specified offer (bid or proposal) acceptance period. Standard Form (“SF”) 33, Solicitation, Offer and Award, includes a block 12 which states that either a minimum offer acceptance period is specified in FAR 52.214-16 (which is included in the solicitation), or if not so included, then the acceptance period to maintain the offeror’s prices is 60 calendar days, unless the offeror inserts a different period in block 12. For commercial contracts using SF 1449, Solicitation-Contract Order for Commercial Items, the minimum offer acceptance period is 30 calendar days, unless a different period is specified in an addendum to the solicitation. This is provided for in FAR 52.212-1, which is incorporated by reference in the SF … Continue reading

THE GAO HAS NO BID PROTEST JURISDICTION OVER FANNIE MAE AND FREDDIE MAC

Even though the Federal National Mortgage Association (FNMA or “Fannie Mae”) and the Federal Home Loan Mortgage Corporation (FHLMC or “Freddie Mac”) were in receivership, they are not “federal agencies” and are not subject to the bid protest jurisdiction of the Government Accountability Office (“GAO”). S.E. James & Co., B-415733, Feb. 7, 2018. S.E. James protested actions by Fannie and Freddie not to include their company on a list of approved insurance agencies. GAO noted that both Fannie and Freddie are chartered as for-profit, shareholder-owned corporations, and seek to enhance the liquidity, stability and affordability of mortgage credit. Because of their deteriorating financial condition, which threatened the stability of the financial market, Fannie and Freddie were placed into conservatorships. The GAO dismissed the protest because … Continue reading

UNREASONABLE RESTRICTIONS ON QUOTATION OR PROPOSAL REVISIONS

Federal Acquisition Regulation (“FAR”) 15.307 states that “[a]t the conclusion of discussions, each offeror still in the competitive range shall be given an opportunity to submit a final proposal revision….” This same requirement for fairness applies to negotiated procurements that seek proposals as well as quotations from offerors. Recently, the Government Accountability Office (“GAO”) reminded agencies that when they seek a final offer, they cannot restrict a contractor’s ability to make amendments in areas where there have been amendments that materially impact those areas. In Castro & Co., B-415508.4, Feb. 13, 2018, the Department of Homeland Security (“DHS”) issued an amendment to a solicitation for financial statement audit and internal control support services. After DHS selected the awardee, it received post-award protests, and decided to … Continue reading

WHAT IS A FAIR MARKET PRICE IN SET-ASIDES?

What is a fair market price, or a fair and reasonable price? The Federal Acquisition Regulation (“FAR”) requires that in a small business set-aside, the government must have a reasonable expectation that the award price will be reasonable, i.e., award will be made at “fair market prices:” FAR 19.502-2 Total small business set-asides. [] (b) [] The contracting officer shall set aside any acquisition over $150,000 for small business participation when there is a reasonable expectation that— (1) Offers will be obtained from at least two responsible small business concerns offering the products of different small business concerns [] and (2) Award will be made at fair market prices. Partial set-asides include the same “fair market price” requirement: 19.502-3 Partial set-asides. (a) The contracting officer … Continue reading

LATENT AMBIGUITY

It is an important rule of interpretation for both solicitations and contracts that the reader must examine the plain language of the document, and resolve questions of interpretation by reading the document as a whole and in a manner that gives effect to all provisions. Where the language is unambiguous, then it can be interpreted and its meaning understood. But, where there are two possible reasonable interpretations of a document, then an ambiguity exists. There are two types of ambiguities: Patent ambiguities: where the ambiguity is an obvious, gross or glaring error (for example, one page includes a specification of six inches for an item, but on a later page, the same specification is referred to as 7.5 inches). Latent ambiguity: a more subtle ambiguity … Continue reading