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THE GAO WILL NOT DECIDE PROTESTS CHALENGING A SOLICITATION ON CONSTITUTIONAL GROUDS

Writer's picture: R.D. Lieberman,ConsultantR.D. Lieberman,Consultant

Although the Government Accountability Office (“GAO”) is not a court in the federal system, in many ways it behaves in a similar way as a lower federal court of special jurisdiction.  One important way is that, like a court of special jurisdiction, the GAO’s jurisdiction is limited to what the Congress has granted to it in federal law, which in the case of GAO’s jurisdiction includes the Armed Services Procurement Act of 1947, the Federal Property and Administrative Services Act of 1949, the Competition in Contracting Act of 1984, and a small number of other procurement statutes. These statutes limit the cases on which the GAO can hear bid protests.  Other federal courts of special jurisdiction include the U.S. Court of Federal Claims, the U.S. Tax Court. the U.S. Court of Appeals for the Armed Forces and the U.S. Court of Appeals for Veteran's Claims. U.S. Federal Gov’t Resources: Lower Federal Courts, see https://guideslib.uw.edu/research/federal/lower-federal-courts.


Just as in a court, if GAO lacks jurisdiction to hear a case, the case will be dismissed.  In Competitive Innovations LLC, B-422500, June 27, 2024, the GAO dismissed a case alleging violation of a right to equal protection under the Constitution. The GAO dismissed the protest where there was no valid basis for the protest under GAO’s jurisdiction.

Competitive Innovations, a historically underutilized business zone (“HUBZone) small business, protested a solicitation issued by the Department of Homeland Security for administrative, clerical and technical services. There were two parts of the protest: an allegation that the solicitation improperly created an evaluation preference for HUBZone offerors, and second that the solicitation violated its constitutional right to equal protection by permitting extra evaluation credits for certain firms.  To begin with, the GAO held that the solicitation did not improperly grant evaluation preferences for HubZone offerors.


Next, the GAO addressed the equal protection issue.  Here the protest alleged that the solicitation permitted HubZone offerors that were also small business (8a) program participants to receive points for contracts that were awarded 8(a) set-asides. The protester asserted that the agency should not allow offerors that were admitted to the 8(a)  program using the rebuttable presumption of social disadvantage to use 8(a) contracts under the experience and past performance scoring factor in the solicitation. The GAO declined to consider this challenge to the solicitation on constitutional grounds.  GAO noted that “Under the Competition in Contracting Act, 31 USC § 3552 [the GAO] is authorized to decide protests concerning alleged violations of a procurement statute or regulation.”  However, an equal protection challenge under the U.S. Constitution does not involve violation of a procurement statute or regulations, and this matter should be taken up at the courts, not at the GAO.  The GAO dismissed the protest because there was not valid basis, and no statute or law that was alleged to have been violated.


Takeaway:  If you submit a bid protest to the GAO, it should be based on alleged violation(s) of a procurement statute or regulation. Allegations of unconstitutionality must be taken to the courts, not GAO.

 

 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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