• R.D. Lieberman,Consultant

GAO Jurisdiction Extends to Procurement Laws and Regulations But Not To Questions of Fiscal Law or t

In an Army procurement for web-based postage, Pitney Bowes, Inc., B-416220, July 11, 2018, the Government Accountability Office (“GAO”) recently made clear that its bid protest jurisdiction extends to violations of procurement laws and regulations, and does not generally extend to questions of fiscal law or regulation. Indeed, 31 U.S.C. § 3552, which provides GAO with its authority to consider and make recommendations on bid protests, states as follows: “A protest concerning an alleged violation of a procurement statute or regulation shall be decided by the Comptroller General [GAO] if filed in accordance with this subchapter.” (Emphasis added).

In its protest, Pitney-Bowes had argued that the proposal submitted by the awardee of the contract, Stamps.com, violated fiscal law and regulation by proposing to purchase postage in advance for the agency, and then later billing the agency for that postage. This proposal, according to the protester, amounted to an unlawful augmentation of the agency’s appropriation—i.e., that the agency was incurring obligations of funds that had not been appropriated by the Congress, and was therefore violating the Antideficiency Act.

The Antideficiency Act prohibits federal agencies from obligating or expending federal funds in advance or in excess of an appropriation, and from accepting voluntary services. The Act prohibits federal employees from:

  • Spending or obligating funds in excess of amounts available in the appropriation or fund unless authorized by law. 31 U.S.C. § 1341(a)(1)(A).

  • Obligating the government to pay money before funds have been appropriated by Congress . 31 U.S.C. § 1341(a)(1)(B).

  • Accepting voluntary services for the United States, except in cases of emergency involving the safety of human life or the protection of property. 31 U.S.C. § 1342.

  • Making obligations or expenditures in excess of apportionments permitted by agency regulations. 31 U.S.C. § 1517(a).

Federal employees who violate the Antideficiency Act may be subject to administrative actions, or to fines, imprisonment, or both. See https://www.gao.gov/legal/appropriations-law-decisions/resources.

The allegation of Antideficiency Act violation was dismissed by the GAO, citing NTELX, Inc., B-413837, Dec. 28, 2016, 2017 CPD ¶ 13 n. 2. The GAO noted that allegations of violations of fiscal laws, including the Antideficiency Act were not procurement statutes and not within GAO’s bid protest jurisdiction. Although the GAO dismissed this portion of the protest, it considered the protester’s other allegations of procurement statutes and laws (the awardee’s technical approach violated regulations, agency erred in finding a quote technically unacceptable and agency failure to adequately document the evaluation record) were considered and denied by the GAO.

The Takeaway: Do not include allegations of agency violations of the Antideficiency Act (or any other non-procurement law or regulation) in a GAO protest. Such allegations will be dismissed.

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/.

4 views0 comments

Recent Posts

See All

Recurring Agency Mistakes in Source Selection

For nearly a century the Government Accountability Office (“GAO”) and its predecessor, the General Accounting Office, have provided an independent, impartial and objective forum for bid protests on fe

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

Copyright © 2020 Richard D. Lieberman