The Federal Circuit’s decision in CGI Federal Inc. v. United States addressed the relationship between FAR Part 12—which applies to acquisitions of commercial items—and FAR Subpart 8.4, which addresses the Federal Supply Schedule (FSS) program. The case involved an RFQ issued under the FSS program by the Centers for Medicare & Medicaid Services
Recently, the Government Accountability Office (GAO) released a bid protest decision that calls into
question the extent to which GSA’s Federal Supply Schedule (FSS) program is commercial. In HealthDataInsights, Inc., GAO rejected the argument that certain pricing terms in a request for quotations (RFQ) were inconsistent with customary commercial practice on the basis that FAR Part 12 does not apply to FSS procurements, which are conducted under FAR Subpart 8.4. The decision contributes to uncertainty regarding the types of clauses that may be used by agencies in FSS acquisitions.
On March 13, 2014, Defense Procurement and Acquisition Policy (DPAP) issued a Class Deviation to FAR 8.404(d) to change how DoD agencies use the Federal Supply Schedule (FSS). By the Class Deviation, DPAP now requires that in placing FSS orders and awarding blanket purchase agreements (BPAs), DoD contracting officers (COs) may not rely on the presumption that order prices are fair and reasonable. Instead, COs must undertake a price analysis in accordance with FAR Part 15, which does not otherwise apply to FSS orders. This change may significantly impact both COs and contractors.…