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This week’s episode covers DOJ, IDIQ, and GAO case law news, and is hosted by partner David Robbins. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a brief summary of significant government contracts legal and regulatory developments that no government contracts lawyer or executive should be without.

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In CW Government Travel, Inc. v. United States, COFC No. 12-708-C (April 11, 2013), the United States Court of Federal Claims (“COFC”) sustained CW Government Travel’s (“CWT”) protest challenging the General Services Administration’s (“GSA”) decision to award a multiple award Indefinite-Delivery/Indefinite-Quantity (“IDIQ”) contract valued in excess of $103 million to a single source as inconsistent with Federal Acquisition Regulation (“FAR”) 16.504(c)(1)(ii)(D)(1) because GSA’s determination that only one offeror was qualified and capable of performing was based on a best-value trade off, instead of on an analysis of the offeror’s individual ability to perform. According to the Court, this was a case of first impression. With this opinion, Judge Sweeney provides guidance to agencies and offerors as to when the government may – and particularly when the government may not – issue a single-source IDIQ contract in excess of the $103 million FAR-based threshold.

In the procurement at issue, GSA awarded a single-source IDIQ contract valued at over $1.3 billion for a next generation of travel management services to Concur Technologies (“Concur”). During the evaluation process, GSA assigned Concur’s proposal an overall rating of “Very Good” and CWT’s proposal a “Marginal” rating. Under the solicitation’s definition for a Marginal rating, the proposal “does not meet Government requirements necessary for acceptable contract performance, but the issues are correctable.” CWT and Concur were the only two competitors in the procurement. However, GSA ultimately concluded that not only was Concur’s proposal was more competitive that CWT’s, but also that Concur was the only offeror qualified and capable of performing at a reasonable price because CWT’s proposal received the “lowest technical rating at the highest price.” Continue Reading In Case of First Impression, COFC Concludes Single-Source Award in Multiple Award IDIQ Contract Fails to Satisfy FAR 16.504

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This week, in UXB-KEMRON Remediation Services, LLC, B-401017 (Oct. 25, 2010), the GAO provided an important reminder about its exacting application of timeliness rules. 

The United States Army Corps of Engineers (“USACE”) published a delivery order proposal request under a multiple award, ID/IQ contract for landmine removal work in Afghanistan. The ID/IQ schedule contract under which the solicitation was issued had a pool of both large and small business entities with expertise in the area of munitions removal and disposal. 

 

The USACE decided to make the delivery order procurement at issue an unrestricted competition open to both small and large businesses alike. One small-business contract holder, UXB-KEMRON Remediation Services LLC, disagreed with this decision and contacted the Contracting Officer to request that the competition be limited to the pool of small business schedule contractors. When the Contracting Officer rejected this request, UXB-KEMRON filed an “appeal” to the USACE’s Task Order Ombudsman seeking reconsideration of the issue. The appeal was filed nine days prior to the due date for quotes. 

 

Eight days later, on the eve of the due date for quotes, the Task Order Ombudsman denied UXB-KEMRON’s appeal. The next week, UXB-KEMRON filed a bid protest with the GAO.  

Shortly thereafter, USACE submitted a motion to dismiss the GAO protest on timeliness grounds because it had been filed after the due date for quotes. In response, UXB-KEMRON argued that its “appeal” to the Task Order Ombudsman was an agency-level protest and, per Federal Acquisition Regulation § 33.103, UXB-KEMRON had ten days from the date of denial of the agency-level protest to file a GAO protest, even if the due date for quotes had lapsed. 

 

GAO agreed with the Government and dismissed the case. The basis for the dismissal was the Comptroller General’s conclusion that an appeal to the Task Order Ombudsman is not an agency-level protest under FAR Part 33 because the Task Order Ombudsman position is a creation of FAR Part 16. In particular, FAR § 16.505(b)(6) states in pertinent part:

 

Task-order and delivery-order ombudsman. The head of the agency shall designate a task-order and delivery-order ombudsman. The ombudsman must review complaints from contractors and ensure they are afforded a fair opportunity to be considered, consistent with the procedures in the contract.

 

Though the “appeal” to the Ombudsman may well have contained all of the information necessary for a valid agency-level protest, FAR § 33.103 does not contain any exceptions to the rules for agency-level protests for Ombudsman appeals. Therefore, because the Ombudsman “appeal” was not styled as a bid protest, and because it was addressed to someone other than the Contracting Officer (or other official designated to receive bid protests), GAO refused to treat it as the equivalent of an agency-level protest. As a result, UXB-KEMRON’s time to file at GAO had expired on the day quotes were due. 

 

This case serves as an important lesson that GAO’s timeliness rules are precisely written and quite unforgiving. Contractors must read these rules carefully and, when unresolved questions remain, contractors should consult with government contracts counsel rather than guess about the appropriate course of action and risk making an error that cannot be undone.