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February 03, 2022 - Federal Procurement, Schedule Contracting

Five Peculiarities of Protests of Federal Supply Schedule Orders

Five Peculiarities of Protests of Federal Supply Schedule Orders

The General Services Administration’s Federal Supply Schedule contracts are an efficient method for agencies across the Government to meet their needs for many commercially available supplies and services. For requirements above a certain value, agencies ordinarily hold competitions among Schedule contract holders for issuance of orders or Blanket Purchase Agreements (BPAs) under the vendors’ Schedule contracts. These fair-opportunity competitions are subject to the regulations in FAR Part 8—not the regulations for negotiated procurements in FAR Part 15 or the rules for task and delivery orders in FAR Subpart 16.5.

The different regulatory regime governing Schedule orders results in an added layer of complexity for companies considering a protest of an award decision. Here are five key differences companies should keep in mind:

1. No Required Debriefing. From a protest perspective, perhaps the biggest difference between Part 8 procurements under a Federal Supply Schedule and most procurements under FAR Parts 15 and 16 is that FAR Part 8 does not require post-award debriefings. The only analogous requirement in FAR Part 8 is found in FAR 8.405-2(d), which provides: “If an unsuccessful offeror requests information on an award that was based on factors other than price alone, a brief explanation of the basis for the award decision shall be provided.” Depending on the contracting officer, this “brief explanation” may be so frustratingly brief as to be meaningless, or it may approximate the detail found in normal Part 15 debriefings. When a “brief explanation” is devoid of meaningful information, it may be difficult to assess whether the ordering agency conducted the procurement properly. A dearth of information dissuades some companies from protesting, but it sometimes has the opposite effect: spurring some disappointed bidders to protest simply to learn why they lost and whether they were treated fairly. Although it is a best practice for agencies to provide fulsome “brief explanations,” a company has no legal recourse if an agency chooses to do the bare minimum required by law.

2. Stay of Performance Clock. In procurements subject to FAR Part 15’s debriefing rules, the Competition in Contracting Act (CICA) ordinarily entitles a protester to an automatic stay of contract performance if the GAO notifies the procuring agency of a filed protest by the later of 10 days after contract award or five days after the close of a required post-award debriefing. Because competitions under FAR Part 8 do not require debriefings, the second alternative timeline (the “debriefing exception”) is inapplicable to protests of an award under FAR Part 8. Thus, to secure a CICA stay of performance under a Part 8 acquisition, a disappointed offeror must file its protest with the GAO within 10 days after award. This can pose a challenge if, for example, an ordering agency schedules the “brief explanation” to fall on the 11th day after award.

3. Jurisdictional Clock. The lack of required debriefings also alters the ordinary timeline for invoking the GAO’s jurisdiction over a protest. In procurements subject to FAR Part 15’s debriefing rules, a post-award protest is ordinarily timely if the protest is received within 10 days after the close of a required debriefing (even if the protester learned a particular basis of protest 12 days earlier). Under FAR Part 8, however, a post-award protest is always due within 10 days of when the protester knew or should have known of the basis of a particular protest ground. In many instances, for an initial protest, that will turn out to be 10 days after the “brief explanation.” But not always. For example, if an agency provides reasonably detailed information about ratings and the basis of award in the initial notice of non-award, and that information provides a basis of protest, the 10-day clock for protesting on that particular ground begins immediately, and not on the day when the agency decides to provide a further “brief explanation.” See, e.g., IR Techs., B-414430 et al., June 6, 2017, 2017 CPD ¶ 162 at 6 (dismissing as untimely an allegation that the awardee’s price was unrealistically low, where the protester filed the protest within 10 days of its “brief explanation,” but where the earlier non-award notice contained the awardee’s price and the comparison of prices was the sole basis of the protest ground). The flipside of the coin is that, if the only basis of protest is disclosed more than 10 days after award, one’s CICA stay clock may have already run out before one’s jurisdictional clock even begins to tick.

4. Forum and Dollar Thresholds. Congress has established bars on certain protests in connection with task or delivery orders under multiple-award Indefinite Delivery/Indefinite Quantity (IDIQ) contracts. Under that bar, with certain exceptions, the GAO lacks jurisdiction over protests of task or delivery order solicitations or awards valued at less than $10 million (under civilian IDIQ contracts) or $25 million (under Defense Department IDIQ contracts). And the Court of Federal Claims ordinarily lacks jurisdiction altogether over these task or delivery order protests. Federal Supply Schedule contracts, however, are not treated as task or delivery order contracts and are not subject to the bar. This means one can protest a FAR Part 8 order regardless of its value, and can even take the protest to the Court of Federal Claims, if one wants.

5. Differences in Merits Arguments. In addition to these important procedural differences, there are also certain substantive legal standards applicable to FAR Part 15 procurements that do not apply to competitions under FAR Part 8. Many of these differences are subtle and are generally irrelevant for post-award protest purposes. But occasionally one of these differences affects the analysis of the merits of a post-award protest. See, e.g., Atlantic Sys. Grp., Inc., B-413901, B-413901.2, Jan. 9, 2017, 2017 CPD ¶ 38 at 7 (denying allegation that the agency should have considered the past performance of the protester’s proposed subcontractors and noting that, unlike FAR Part 15, “FAR part 8 does not suggest that in evaluating an offeror’s past performance an agency should also consider the past performance of its proposed subcontractors”). The differences in substantive law may be more evident in pre-award protests of solicitation terms than in post-award protests.