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Key Case Law Rules for Government Contract Formation

Book Description

Go Beyond the FAR!

The guidance contained in the almost 2000 pages of the Federal Acquisition Regulation and the various agency supplements are just a part of the resources government acquisition professionals need to do their jobs effectively. Accessing and understanding case law is equally important to a thorough understanding of government contracting. Legal decisions explain the Government Accountability Office's and the courts' views on how procurement statutes and regulations apply in a wide range of situations. Case law also gives potential bid protesters and agencies a way to gauge the likely outcome of a protest.

Until now, it has been difficult to find and understand the legal decisions that could be relevant to a particular situation. Key Case Law Rules for Government Contract Formation changes that by organizing and explaining the most important protest grounds in a readily accessible and comprehensible way. With an emphasis on more recent cases, the book is organized around the key protest grounds, such as pricing issues, allegations that the government wrongfully prevented competition, or improper sealed-bidding procedures.

Bridging the gap of understanding between the legal and the contracting communities, this book is a much-needed addition to the essential resources for acquisition professionals.

Table of Contents

  1. Preface
  2. Acknowledgments
  3. Acronyms
  4. INTRODUCTION: The Protest Forums and the Process
  5. THE KEY CASE LAW RULES BROKEN DOWN BY PROTEST GROUND
    1. Chapter 1. Protest Grounds Alleging That the Government Is Wrongfully Preventing Competition
      1. 1.   Lack of Advance Planning
      2. 2.   Improper or Unsupported Use of an Exception to Competition
        1. A. Exception 1: Only One Responsible Source
        2. B. Exception 2: Unusual and Compelling Urgency
        3. C. Exception 3: Industrial Mobilization
        4. D. Exception 4: International Agreement
        5. E. Exception 5: Authorized or Required by Statute
        6. F. Exception 6: National Security
        7. G. Exception 7: Public Interest
      3. 3.   Contract Was Modified Beyond the Scope
      4. 4.   Reprocurement Contract Did Not Seek Competition
    2. Chapter 2. Protest Grounds Based on the Government’s Description of the Requirement
      1. 1.   Ambiguities in the Solicitation: Patent and Latent
      2. 2.   Improper Use of “Brand Name or Equal” Descriptions
      3. 3.   Defective or Inadequate Specifications
      4. 4.   Unduly Restrictive Specifications
      5. 5.   Changed Requirements and Solicitation Amendments
    3. Chapter 3. Protest Grounds Challenging the Government’s Exercise of Discretion or the Government’s Conduct of the Competition
      1. 1.   Agency’s Commercial Item Determination
      2. 2.   Responsibility Determinations
      3. 3.   Negotiated Procurements: Tradeoff Process
      4. 4.   Competitive Range
      5. 5.   Evaluation in Strict Accordance with the Solicitation
      6. 6.   Evaluation Team
      7. 7.   Relative Importance of Factors and Subfactors in a Solicitation
      8. 8.   Past Performance
        1. A. Past Performance Generally
        2. B. Subground 1: Improper Evaluation of Relevance of Past Work
        3. C. Subground 2: Improper Evaluation of Key Personnel, Predecessor Companies, Subcontractors, or Teams
        4. D. Subground 3: Neutral Ratings for Lack of Past Performance
        5. E. Subground 4: Improper Evaluation of Adverse Information
        6. F. Subground 5: Disparate Treatment
        7. G. Subground 6: Government Did Not Seek Enough Information
        8. H. Subground 7: Ignoring Information That Is “Too Close at Hand”
      9. 9.   Proposals Submitted Late
      10. 10. Material Misrepresentation: Bait and Switch
      11. 11. Unacceptable or Noncompliant Proposals
      12. 12. Preference for Sealed Bidding over Negotiated Procurements
    4. Chapter 4. Protest Grounds Based on the Communications Between the Government and Offerors
      1. 1.   Clarifications
      2. 2.   Discussions
    5. Chapter 5. Protest Grounds Based on Pricing Issues
      1. 1.   Buying-in or Below-Cost Prices
      2. 2.   Price or Cost Evaluation
      3. 3.   Price Reasonableness and Price Realism
    6. Chapter 6. Protest Grounds Based on Small Business Issues
      1. 1.   Bundling and Consolidation
      2. 2.   Limitations on Subcontracting
      3. 3.   HUBZone Contracting Procedures
      4. 4.   Certificate of Competency
      5. 5.   SBA’s 8(a) Program
      6. 6.   Small Business Set-Aside Decision
      7. 7.   Small Business Status Determination
    7. Chapter 7. Protest Grounds Alleging Unfair Government Conduct
      1. 1.   Availability of Solicitations
      2. 2.   Organizational and Consultant Conflicts of Interest
      3. 3.   Offeror’s Responsibility to Obtain Solicitation Documents
      4. 4.   Standards of Conduct: Government Independence and Alleged Bias
      5. 5.   Submission of Proposals: Complying with the Terms of the Solicitation
      6. 6.   Cancellation of a Solicitation
    8. Chapter 8. Protest Grounds Based on Sealed Bidding Procedures
      1. 1.   Bid Guarantees
      2. 2.   Evaluations of Options in Invitations for Bids
      3. 3.   Cancellation of an Invitation for Bids
      4. 4.   Mistakes in Bids
      5. 5.   Responsiveness to an IFB
    9. Chapter 9. Protest Grounds Based on the Unique Type of Contract or Contracting Procedures
      1. 1.   Federal Supply Schedule Contracting
        1. A. Alleged Unreasonable Government Evaluation of FSS Offers
        2. B. Allegations of Off-Schedule Purchases
        3. C. Allegations That the Agency Improperly Limited Competition
        4. D. Allegedly Improper Responsibility Determination
      2. 2.   Blanket Purchase Agreements Off Federal Supply Schedules
      3. 3.   Indefinite Delivery/Indefinite Quantity Contracts
        1. A. Propriety of Using ID/IQ Contracts for Construction
        2. B. Guaranteed Minimum
        3. C. Multiple-Award Preference
        4. D. Protestability of Task Orders
      4. 4.   Simplified Acquisition Procedures
        1. A. All-or-None or Multiple Awards
        2. B. Blanket Purchase Agreements
        3. C. Evaluation of Quotations or Offers
        4. D. Promoting Competition
        5. E. Scope of FAR Part 13
        6. F. Synopsis and Posting Requirements
        7. G. Test for Certain Commercial Items
    10. Chapter 10. Protest Grounds Based on Alleged Statutory Violations (Besides CICA)
      1. 1.   Buy American Act
      2. 2.   Javits-Wagner-O’Day Act
      3. 3.   Procurement Integrity Act
      4. 4.   Randolph-Sheppard Act
    11. Index of Representative Cases