• R.D. Lieberman,Consultant

The Government Accountability Office Has No Bid Protest Jurisdiction over Fannie Mae and Freddie Ma

Even though the Federal National Mortgage Association (FNMA or “Fannie Mae”) and the Federal Home Loan Mortgage Corporation (FHLMC or “Freddie Mac”) were in receivership, they are not “federal agencies” and are not subject to the bid protest jurisdiction of the Government Accountability Office (“GAO”). S.E. James & Co., B-415733, Feb. 7, 2018.

S.E. James protested actions by Fannie and Freddie that their company was not included on a list of approved insurance agencies. GAO noted that both Fannie and Freddie are chartered as for-profit, shareholder-owned corporations, that seek to enhance the liquidity, stability and affordability of mortgage credit. Because of their deteriorating financial condition, which threatened the stability of the financial market, Fannie and Freddie were placed into conservatorships.

The GAO dismissed the protest because of lack of jurisdiction, noting that the Competition in Contracting Act (“CICA”) establishes its jurisdiction, and CICA limits it to procurements by a “federal agency.” CICA adopted the definition of Federal Agency in Section 2 of the Federal Property and Administrative Services Act of 1949, See 31 U.S.C. § 3551(3), 40 U.S.C. § 102. This defines a federal agency as an executive agency or an establishment in the legislative or judicial branch of the Government, except the Senate, the House of Representatives and the Architect of the Capitol and activities thereunder. An executive agency is an executive department or independent establishment in the executive branch or a wholly-owned government corporation. Fannie Mae and Freddie Mac are not executive agencies, nor are they wholly owned government corporations, and therefore are not subject to the jurisdiction of the GAO.

The takeaway: Before you submit a protest to the GAO, be sure that the GAO will have jurisdiction, based on the CICA definitions, or your protest will be dismissed. Although the GAO rules do not specifically identify the agencies over which GAO exercises jurisdiction, a search for an agency you may want to protest may be undertaken at the "gao.gov" site (bid protests) to see if GAO has accepted jurisdiction in the past.

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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