Federal Supply Schedule

GSA FSS LogoThe 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

The Federal Supply Schedule (FSS) is supposed to be a way for agencies to streamline procurement. However, achieving the desired efficiency requires that the Government buyer use the right contract vehicle for a given requirement. If the Government uses the wrong schedule—or a contractor proposes to provide goods or services that are not available under its schedule contract, and the agency fails to perform a careful evaluation—litigation may effectively eliminate the desired efficiencies. A recent GAO decision, US Investigations Services provides a good example of how thing can go awry.
Continue Reading Bidder Beware—Mind the Details when Using the Federal Supply Schedule

Challenges to an agency’s best value tradeoff decision can be difficult to win, as GAO doesn’t reevaluate the offerors’ proposals, gives deference to evaluators’ judgments, and performs a limited review of whether the evaluation and source selection decision were reasonable (and consistent with the solicitation criteria and applicable procurement laws/regulations). However, every once in a while, GAO finds that an agency exceeded the substantial discretion it has and sustains a protest challenging an agency’s best value tradeoff decision. GAO recently did just that in PricewaterhouseCoopers LLP, and the decision provides guidance to contractors challenging an agency’s best value tradeoff decision.
Continue Reading GAO Holds NASA Exceeded Its Discretion in Protest of FSS Task Order

TAA Compliant Logo

Late last week, the D.C. Circuit affirmed the district court’s dismissal on summary judgment of a relator’s FCA claims in U.S. ex rel. Folliard v. Government Acquisitions, Inc. & Govplace. Although the court provided an extensive discussion of several evidentiary rulings that led to the dismissal of much of the case, its ruling with respect to the Trade Agreements Act (TAA) certifications received from suppliers is significant to contractors. The court held that, in providing country of origin information to the Government under the TAA, the contractor reasonably based its representations on certifications it received from a supplier. Accordingly, the district court had properly granted summary judgment with respect to an FCA claim based on purportedly defective certifications. To the extent a Government contractor is reselling products in reliance on a supplier’s TAA certification—and there is a reasonable basis to accept the certification—the Govplace decision should prove helpful to contractors.
Continue Reading D.C. Circuit Affirms Significant FCA Victory for Government Contractor that Relies on a Supplier’s Country of Origin Certification

SDVOSB-Image

The Federal Circuit recently issued a decision in Kingdomware Technologies, Inc. v. US, resolving the two-year dispute concerning whether the Veterans Administration (VA) is required to invoke the “Rule of Two” before awarding a contract using GSA’s Federal Supply Schedule (FSS). In 2012, GAO held that the VA was required to first invoke the Rule of Two and, if satisfied, award a contract. The VA announced that it would not follow GAO’s recommendation, and Kingdomware, a service-disabled veteran-owned small business (SDVOSB), protested at the CFC. The CFC sided with the VA and held that the VA could order from the FSS without invoking the Rule of Two. This week, the Federal Circuit sided with the VA (over a dissent) and held that the VA is not required to first use the Rule of Two.


Continue Reading Federal Circuit Resolves CFC-GAO Split on VA Protests