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Award of Subcontracts Was a "Procurement"

The Court of Federal Claims determined it had jurisdiction over a protest of contract awards issued by a prime contractor because the government's involvement was sufficient to constitute a procurement action under the Tucker Act. The contractor challenged a contractor's award to three foreign-based contractors pursuant to its contract with the United States Agency for International Development to procure health-related services. The Government Accountability Office had dismissed the protest for lack of jurisdiction (24 CGEN 112,794), and the government argued the CFC also lacked jurisdiction because the only procurement action for purposes of the Tucker Act (28 USC 1491(b)(1)) was between USAID and the prime contractor, not the prime contractor's efforts on behalf of USAID.

Indicia of Procurement

However, USAID considered whether to use a prime contractor for the procurement, provided the prime contractor's procurement procedure, and provided an official for the contractor's selection committee. These were indicia of "stages of the process of acquiring property or services," the definition of "procurement" at 41 USC 403(2) that the Court of Appeals for the Federal Circuit adopted in Distributed Solutions, Inc., et al. v. U.S. (52 CCF 78,993) to determine whether a procurement had occurred for purposes of the Tucker Act. (Alatech Healthcare, L.L.C. v. U.S., FedCl, 54 CCF 79,228)




(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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