GAO has the authority to oversee bid protests involving many different government agencies. But its jurisdiction has limits, such as that it won’t consider protests of certain activities at the U.S. Mint.
One other limitation is that, when a federal agency provides funding to a non-federal entity and that non-federal entity procures services through competitive award, GAO will not consider a protest of that award. A recent GAO decision confirmed the lack of jurisdiction in a situation involving a competitive procurement by a federally recognized tribe using FEMA grant money.
In Kimo Constructors Inc., B-416162 (April 23, 2018), Santo Domingo Pueblo, a federally recognized tribe, received grant funding from FEMA to procure public work projects, including sediment removal.
The RFP included a number of references to FEMA. The RFPs were identified as, for example, FEMA-4152-PW506, and the RFP noted that “The Santo Domingo Pueblo requests proposals with the intent of awarding a contract for FEMA Projects Group 1.”
Kimo Constructors, Inc., a company headed by a veteran and Native American, submitted proposals but was not selected for award. Kimo protested to GAO.
Kimo acknowledged that the tribe was a “non-federal entity” pursuant to 2 C.F.R part 200. Under this regulation dealing with federal “awards” (as opposed to contracts), a non-federal entity is defined as “a state, local government, Indian tribe, institution of higher education (IHE), or nonprofit organization that carries out a Federal award as a recipient or subrecipient.”
Kimo argued that, even though Santo Domingo Pueblo was a non-federal entity, GAO should consider its dispute because GAO may consider “matters that are primarily of federal concern including allegations of violations of binding procurement standards, impropriety, waste, and abuse.” Because Santo Domingo Pueblo, as a federal reward recipient, must adhere to various federal regulations under 2 C.F.R part 200, Kimo alleged that this dispute is a matter of federal concern.
GAO responded that its authority over bid protests stems from the Competition in Contracting Act. Under CICA, GAO can hear procurement protests questioning a “solicitation or other request by a federal agency,” not based on the mere use of federal funds. Under CICA, a federal agency is, with some exceptions, “an executive agency or an establishment in the legislative or judicial branch of the Government.”
Because Santo Domingo Pueblo is not a federal agency, and it issued the RFPs, GAO did not have jurisdiction. GAO dismissed the protest.
This decision reminds us that, even when a contractor is competing for an award of funds from a federal agency that mentions the federal agency in the solicitation, what matters for GAO jurisdictional purposes is the identity of the entity issuing the solicitation. If it is not a federal agency, GAO will not hear the dispute.
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