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CFC Hears Protest of AbilityOne Award, Issues TRO

The Court of Federal Claims exercised jurisdiction over a protest involving the AbilityOne Program because the protest concerned a government procurement that resulted in the award of a contract by a federal agency. The post-award protest involved an acquisition of custodial and grounds maintenance services by the General Services Administration and the Committee for Purchase From People Who Are Blind or Severely Disabled pursuant to the AbilityOne Program (41 USC 46-48c). GSA and the Committee engaged a third party called NISH to "represent" nonprofit agencies serving people with disabilities in dealing with the Committee, evaluate potential nonprofit contractors, and make award recommendations to the Committee. The protester challenged several aspects of NISH's evaluation and award recommendation and sought a temporary restraining order. The government moved to dismiss, arguing the CFC lacked jurisdiction because the protester did not directly challenge any conduct on the part of GSA or the Committee.

Serious Legal Questions

However, the court "clearly" had jurisdiction to the extent the protester was challenging the actions of GSA working in concert with the Committee. Under the Tucker Act, the CFC has jurisdiction "to render judgment on an action ... in connection with a procurement or a proposed procurement" (28 USC 1491(b)(1)), and the Court of Appeals for the Federal Circuit has defined the term "procurement" broadly. Here, when GSA "determined a need" for services for the government and the Committee listed those services on the Procurement List, a federal procurement was under way. GSA and the Committee also acted "in connection with" a procurement when they engaged NISH and considered and adopted its recommendations. After balancing the relevant factors, the court granted the protester's request for a TRO. The protester's allegations of failure to follow the evaluation scheme, inaccurate evaluation findings, conflicts of interest, and favoritism presented "quintessential issues of fact" which could best be resolved following deposition testimony or an evidentiary hearing, and the protester raised "serious legal questions" about the evaluation and ranking. (Bona Fide Conglomerate, Inc. v. U.S., FedCl, 55 CCF 79,484)




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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