Not too many government contracting disputes make it to a federal court of appeals—the level just a step below the U.S. Supreme Court. The most notable recent examples would probably be the Federal Circuit’s decision in Kingdomware Technologies (which, as SmallGovCon readers know, was ultimately overturned by the Supreme Court in 2016) and the D.C. Circuit’s decision Rothe Development (which the Supreme Court declined to consider).
But recently, the Federal Circuit issued a decision of note to government contractors. In AgustaWestland North America v. United States, the Court issued guidance on what constitutes a “procurement decision” and upheld the Army’s decision to buy helicopters on a sole-source basis.
Let’s take a look.
An agency’s decision to award a contract as an 8(a) sole source is a “business decision” for which the agency has broad discretion–and a potential protester challenging the agency’s use of that discretion will have an uphill battle.
In a recent bid protest decision, the GAO confirmed that government officials are presumed to act in good faith, and that the presumption extends to the decision to award an 8(a) sole source contract instead of competing the work in question.
An agency’s attempt to order under a Federal Supply Schedule blanket purchase agreement was improper because the order exceeded the scope of the underlying BPA.
In a recent bid protest decision, GAO held that the agency had erred by attempting to issue a sole-source delivery order for cloud-based email service when the underlying BPA did not envision cloud services.
An agency may not procure new services under an existing GSA Schedule delivery order if the new services exceed scope of the original delivery order.
In a recent decision, Onix Networking Corp., B-411841 (Nov. 9, 2015), the GAO sustained a protest where the agency acquired a new type of software by modifying an existing delivery order for software license extensions because the acquisition exceeded the scope of the initial delivery order. According to the GAO, the out-of-scope modification amounted to an improper sole source contract.
Women-owned small businesses could receive sole source contracts under the National Defense Authorization Act of 2015, which was passed by the House of Representatives last week.
The House-passed 2015 NDAA includes an amendment authorizing economically disadvantaged women-owned small businesses to receive sole source contracts of up to $6.5 million for manufacturing, and up to $4 million for other industries. For WOSBs that are not economically disadvantaged, sole source contracts would be available, with the same thresholds, in industries where WOSBs are considered substantially underrepresented.
The U.S. Department of Agriculture improperly awarded a $141 million sole source contract in exchange for the contractor’s agreement to withdraw a GAO bid protest.
According to a recent GAO bid protest decision, the award violated the Competition in Contracting Act, which does not permit an agency to award a sole source contract in exchange for a contractor’s promise to terminate litigation against the agency.