Preface
Federal government contracting is a highly regulated area of commerce. On the first day of training, an aspiring acquisition professional learns the central importance of the Federal Acquisition Regulation (FAR)—the principal regulation governing federal government contracting.1 It quickly becomes clear that the 53-part/~2,000 page FAR plays a central role in regulating our federal procurement system. Acquisition students also learn that as they work through contracting issues, their regulatory analysis cannot stop at the FAR level because most large federal departments and agencies have created their own unique regulations that further implement the FAR. These FAR supplements, in combination with the FAR, are collectively known as the “FAR system.”
For example, an Army contracting officer must not only become familiar with the FAR, but must also learn to drill down through the corresponding portions of the Defense FAR Supplement (DFARS) as well as the Army FAR Supplement (AFARS) to understand a complete rule as applied to a particular issue. Even further, the contracting officer must be aware of “local” acquisition instructions that tailor these various regulations to a particular contracting activity, some of which are based on higher level policy guidance. For Department of Defense (DOD) agencies, policies are generated by offices such as the Defense Procurement and Acquisition Policy (DPAP) office as well as service-level policy-making organizations like the Office of the Deputy Assistant Secretary of the Army for Procurement [ODASA(P)]. Although the FAR system governs all phases of the contract life cycle, the regulations prove particularly important during the most difficult (and usually most contested) phase: contract formation.
As a Judge Advocate, I assist contracting officers in navigating these rules on a daily basis. Over the years, I have noticed that experienced contracting officers can quickly drill down into the FAR and the FAR supplements and zero in on the key regulations (as well as any governing policy documents) for any given issue. After all, the FAR and its supplements are well-organized and readily available online—always at the contracting officer’s fingertips. Further, if necessary, contracting officers can readily find the statutory language relevant to their issue.
The problem, however, is that the FAR and its supplements are not the totality of the rules governing contract formation. Case law provides another, equally important source of rules for contracting officers: Legal decisions explain the Government Accountability Office’s (GAO’s) or the courts’ views on how procurement statutes and regulations apply in a wide array of factual scenarios. Although some cases present a rather straightforward interpretation of the FAR or a particular procurement statute, others reveal the GAO’s or the court’s interpretation of a particular FAR provision or procurement statute. Simply put, the “law” as applied to many contract formation issues is not always revealed through a plain reading of the FAR and its supplements.
Fortunately, a robust body of case law covers almost every conceivable contract formation issue. Consequently, it is rare to be faced with a contract formation issue that is truly unique from a case law perspective. Typically, analogous protest decisions enable the agency to ensure that its planned course of action comports with GAO’s (or the courts’) views on any particular contract formation issue. An additional benefit of this large body of case law is that it allows a protester and the agency to gauge the likely outcome of a protest should one be filed. However, these protest decisions tend to be less accessible to contracting officers than the FAR. Because many contracting officers do not have direct access to commercial online legal research services, they have a less-than-optimal ability to perform their own case law research.
At least one free website has effectively addressed this problem. “WIFCON” (www.wifcon.com), “Where in Federal Contracting?” is a truly useful resource. Among this site’s outstanding features is a comprehensive database of bid protest cases broken down by FAR section, forum, and issue. This helpful feature allows acquisition professionals to perform targeted research on any contract formation issue.
Case law governing contract formation is created by three separate forums (or “venues”): (1) GAO, (2) the Court of Federal Claims (COFC), and (3) the Court of Appeals for the Federal Circuit (CAFC). (Supreme Court cases focusing on federal government contract formation issues are rare.) These forums’ rulings interpreting procurement statutes and regulations are critical to an in-depth understanding of contract formation issues.
This book is structured to be straightforward and well-organized. It extracts the key case law from the protest forums, organizes it by protest ground, and provides an explanation of the protest ground in plain English. These lynchpin holdings from the GAO and the courts—typically one or two paragraphs in length—are central to an in-depth understanding of the rules governing contract formation. Recognizing that contracting officers must occasionally rule on agency-level protests, this book aims to provide a useful reference that will allow them to quickly locate analogous cases that may be “on point” to the issues raised by a protester.
Additionally, this book provides an index of cases by topic to enable an acquisition professional to locate quickly and easily other relevant cases focused on that topic. Although the index is not exhaustive, the cases themselves cite to other cases that address issues similar to the issue at hand. The index, combined with a reading of the cases themselves, can serve as an “on ramp” to other relevant cases focused on that particular protest ground.
This book does not provide any legal advice whatsoever and is not intended in any way to replace the professional advice of an attorney. On this point, I note that FAR § 33.102 requires the contracting officer to seek legal advice for all protests regardless of forum. In my experience, it is more helpful if both the contracting officer and the agency attorney are aware of the cases covering any particular protest ground as they work together as a team with the goal of making the best decisions for the government. After all, acquisition is a team sport.
Of course, no book of this type would be complete without a disclaimer. First, the key holdings set forth in this book may or may not apply to a particular fact pattern; the devil is almost always in the details. Further, case-law rules, like statutes and regulations, can change over time. Therefore, acquisition professionals must always ensure that the particular case has not been overruled or rendered obsolete. Although most of the case-law excerpts in this book will likely apply for some time, acquisition professionals must always be alert to the possibility that a particular case may have been overruled by either a subsequent decision or a statutory or regulatory change. I recommend that readers monitor www.wifcon.com daily to keep up with any such changes. Again, nothing in this book is intended to be construed as legal advice. This book was created to provide the reader with accurate information; however, it is not intended to be a substitute for the advice of an attorney. All parties should seek legal advice from an attorney as required and appropriate.
THE LAYOUT OF THIS BOOK
This book is designed to set out the key case-law language of the various protest forums in well-organized “snapshots” of the various protest grounds. Following an introduction to the protest forums and the protest process, the following chapters set out the protest grounds in ten categories:
Chapter 1. Protest Grounds Alleging That the Government Is Wrongfully Preventing Competition
Chapter 2. Protest Grounds Based on the Government’s Description of the Requirement
Chapter 3. Protest Grounds Challenging the Government’s Exercise of Discretion or the Government’s Conduct of the Competition
Chapter 4. Protest Grounds Based on the Communications Between the Government and Offerors
Chapter 5. Protest Grounds Based on Pricing Issues
Chapter 6. Protest Grounds Based on Small-Business Issues
Chapter 7. Protest Grounds Alleging Unfair Government Conduct
Chapter 8. Protest Grounds Based on Sealed-Bidding Procedures
Chapter 9. Protest Grounds Based on the Unique Type of Contract or Contracting Procedures
Chapter 10. Protest Grounds Alleging Statutory Violations (Besides CICA)
Arguably some protest grounds could fall within more than one of these ten categories; however, the intent was to list the protest grounds under the most relevant category. Each individual protest ground begins with a paragraph entitled “Overview of This Protest Ground,” which explains that particular ground in a straightforward manner. That section is followed by the key language from the protest forums, starting with the CAFC language (if any) and then moving to the COFC and finally to the GAO. Because the GAO is by far the most popular protest forum with the most reported bid-protest decisions, many of the protest grounds include language only from the GAO. Further, if the COFC or the CAFC cases are not at odds with the GAO’s view on that topic, the court case may be referenced in the index instead of being quoted. Although the COFC and the GAO occasionally disagree, their disagreement is most often fact-based rather than related to the interpretation of a procurement law or regulation. As a result, this book leans far more heavily on the GAO cases than on the COFC and the CAFC cases.
In researching the various cases for this book, I noticed that certain protest grounds are frequently sustained and some are almost always denied, with the rest falling somewhere along that spectrum. I have placed a risk scale symbol next to each protest ground corresponding to the frequency of sustained protests. I have also considered recent trends, affording more recent sustained protests more weight than less recent cases. This analysis (which is from the government’s perspective), is expressed using the following risk meter:
Directly following the brief overview, you will find the key text the protest forums tend to use before they rule on the protest ground at issue. I have omitted most of the internal case citations from these rulings for the sake of clarity and ease of reading. I note, however, that these internal citations provide a wealth of related case-law citations that may be helpful in performing more in-depth research. Thus, if an excerpt from this book is on point to an issue you are confronting, I recommend that you go to that case and take note of the internal citations, which will usually provide a line of other relevant cases.
The vast majority of the excerpts in this book are from the GAO, which is a far more popular forum than the courts. However, if there is key language from the courts, namely the CAFC or the COFC, it is set out in that order—simply because our bid-protest system generally allows for a “second bite at the apple” at the COFC/CAFC following a GAO denial or dismissal of a protest. The CAFC is the higher court to the COFC and can rule on appeals from the COFC. Although the COFC and the CAFC cases are not technically binding on the GAO, the reality is that a protester has the option of filing its protest directly to the COFC or filing at the COFC after a GAO denial or dismissal of the protest. Accordingly, often the best practice is to research any COFC and CAFC decisions on a particular protest ground before researching the GAO’s precedent.
Underneath those key case law excerpts, I have set out the “FAR Crosswalk,” which simply traces the protest ground to the relevant section(s) of the FAR when applicable. In light of the multitude of FAR supplements published by the various agencies, the FAR Crosswalk does not list all citations down to the FAR supplement/local policy level. An acquisition professional will need to read through all relevant agency-level supplements (and policies) in working through a particular issue. Following the FAR Crosswalk, I have identified the page of the Index of Representative Cases where an acquisition professional can find citations to additional relevant cases. A protest will often include several distinct protest grounds; therefore, some cases will be found under more than one subject. Again, the index is not exhaustive and is focused on more recent cases.
Finally, following the citation to the index, I have provided a “commentary” section that is based on my experience and my reading of the cases in that particular area. The commentary is not intended to be a complete discussion of the protest ground, but instead is aimed at providing some helpful tips to acquisition professionals. In light of the rather broad discretion that the GAO and the courts generally afford an agency, I have found that it is more instructive to focus on sustained protests. Cases that sustain a particular protest tend to be more illuminating than those that merely find that the agency acted within its (rather large) zone of discretion. In other words, the sustained protest cases tend to put a finer point on unacceptable governmental behavior.
HOW TO USE THIS BOOK
This book can be used in one of two ways. First, I believe that all acquisition professionals would benefit from reading this book cover to cover. A comprehensive reading will put you in a much better position to spot contract formation issues in your day-to-day job and will thereby enable you to serve as a greater asset to your contracting activity. After all, it is easier to avoid pitfalls if you are aware of them. Nonetheless, this book is designed to allow you to jump around. If you are facing a particular contracting issue, you will be able to zero in on that issue quickly. On this last point I note that contracting issues do not arise only when a protest is filed; they often arise as a natural part of planning an acquisition, drafting a solicitation, answering questions from prospective offerors during the solicitation process, responding to congressional inquiries, explaining certain decisions to auditors, etc. As stated earlier, please remember to ensure that the case law and regulatory citations are current and that they have not been rendered obsolete by a new case or a new statute, regulation, or policy that came into effect after this book was published.
This book is designed to provide a practical snapshot of the key case law language. It is not intended to be an exhaustive treatise on every topic included, nor does it trace the regulatory history of each of these topics. Furthermore, it focuses more on the typical protest for that particular ground as opposed to anomalous fact patterns. In light of the many unique fact patterns that can arise in government contracting, there may very well be another case that is more on point to a reader’s particular issue than the case that is being quoted in this book.
This book (particularly the index) should be helpful in getting the reader to the relevant line of cases for a particular protest ground. Thus, this book can be used as a practical first research step; depending on the complexity of the issue, the reader will benefit from reading more in-depth treatises, law review articles, and the full cases.
I have attempted to cover the vast majority of the most common protest grounds. Some of the more obscure grounds, especially those that have resulted in only one or two reported decisions in the last decade, are not included. Also, this book places more emphasis on recent cases (those decided in the last ten years or so) than on older cases. If a particular protest ground has not been raised in the last decade, or has been the subject of just a handful of cases, it will most likely not be included.
I hope you find this book useful in your work as an acquisition professional. I am always interested in feedback and ways in which you believe the next edition of this book can improve upon the first. Please send any comments to me at [email protected]. Thank you.
—Pat Butler
Lieutenant Colonel
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1 The FAR and all of the various agency supplements are codified in Title 48 of the Code of Federal Regulations (C.F.R.). The FAR is jointly published by the Secretary of Defense, the Administrator of NASA, and the Administrator of GSA.