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Cooperative Agreement Providing Funds Does Not Make an Entity a Federal Agency

  • Writer: R.D. Lieberman,Consultant
    R.D. Lieberman,Consultant
  • Aug 1, 2023
  • 2 min read

Does a non-profit organization qualify as a “federal agency” for purposes of Government Accountabiliity Office (“GAO”) protest jurisdiction? The GAO says that even though the organization receives federal funding for a procurement, it is not a federal agency. Acclaim Systems, Inc., B-421379, Feb. 10, 2023.


The Association of Food and Drug Officials (“AFDO”) holds a cooperative agreement with the U.S. Food and Drug Administration (“FDA”) that provided funds to AFDO for a procurement for information technology services to design, develop and manage a national regulatory platform for agriculture and public health. Acclaim asserted that AFDO made a flawed selection decision based on unreasonable technical evaluations.


AFDO is a well-recognized non-profit organization. It used funding from a cooperative agreement between it and the Department of Health and Human Services, FDA to issue a solicitation whereby AFDO would contract with the successful offeror to implement and manage the proposed solution.


GAO noted that its statutory authority to decide bid protests is set forth in the Competition in Contracting Act of 1984 (“CICA”). 31 USC §§ 3551-3557. CICA defines a protest as a written objection by an interested party to a solicitation or other request by a federal agency for offers for a contract for the procurement of property or services, or the award of such a contract. CICA adopted the definition of a federal agency set forth in the Federal Property and Administrative Services Act of 1949, 40 U.S.C. § 102(5). This section of law defines a federal agency as “an executive agency or an establishment in the legislative or judicial branch of the Government (except the Senate, House of Representatives and the Architect of the Capital).”


The threshold jurisdictional question for GAO is whether the procurement being protested is being conducted by a federal agency. GAO noted that AFDO is not a federal agency as defined by CICA. Further, nothing demonstrated that FDA involvement in the procurement was anything more than providing funding via the cooperative agreement.


Accordingly, since the procuring entity was not a federal agency, GAO was without jurisdiction to consider the protest and GAO dismissed the protest.


Takeaway. Protesters must be sure that any GAO protest is based on procurement by a federal agency. Money that passes through from a federal agency to a non-federal agency does not bring a protest within the scope of GAO protest jurisdiction.


For other helpful suggestions on government contracting, visit:

Richard D. Lieberman’s FAR Consulting & Training at https://www.richarddlieberman.com/, and Mistakes in Government Contracting at https://richarddlieberman.wixsite.com/mistakes

 
 
 

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The website of Richard Donald Lieberman, a government contracts consultant and retired attorney who is the author of both "The 100 Worst Mistakes in Government Contracting" (with Jason Morgan) and "The 100 Worst Government Mistakes in Government Contracting." Richard Lieberman concentrates on Federal Acquisition Regulation (FAR) consulting and training, including  commercial item contracting (FAR Part 12), compliance with proposal requirements (FAR Part 15 negotiated procurement), sealed bidding (FAR Part 14), compliance with solicitation requirements, contract administration (FAR Part 42), contract modifications and changes (FAR Part 43), subcontracting and flowdown requirements (FAR Part 44), government property (FAR Part 45), quality assurance (FAR Part 46), obtaining invoiced payments owed to contractors,  and other compliance with the FAR. Mr.Lieberman is also involved in numerous community service activities.  See LinkedIn profile at https://www.linkedin.com/in/richard-d-lieberman-3a25257a/.This website and blog are for educational and information purposes only.  Nothing posted on this website constitutes legal advice, which can only be obtained from a qualified attorney. Website Owner/Consultant does not engage in the practice of law and will not provide legal advice or legal services based on competence and standing in the law. Legal filings and other aspects of a legal practice must be performed by an appropriate attorney. Using this website does not establish an attorney-client relationship. Although the author strives to present accurate information, the information provided on this site is not guaranteed to be complete, correct or up-to-date.  The views expressed on this blog are solely those of the author. FAR Consulting & Training, Bethesda, Maryland, Tel. 202-520-5780, rliebermanconsultant@gmail.com

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