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Government Ordered to Comply with Automatic Stay Requirements

A government agency was required to comply with the automatic stay of performance requirements in the Competition in Contracting Act, according to the Court of Federal Claims, because it was immaterial whether a protest was properly filed with the Government Accountability Office. The protest arose from a task-order procurement for technology infrastructure services issued by the Transportation Security Administration. The TSA was created by the Aviation and Transportation Act (PL 107-71), which directed TSA to use the Acquisition Management System, a unique acquisition system maintained by the Federal Aviation Administration. The Department of Transportation Appropriations Act of 1996 (PL 104-50) exempted the AMS from "all federal acquisition laws and regulations," including CICA, and therefore GAO lacked jurisdiction to resolve disputes arising out of TSA procurements. However, subsequent legislation --the Consolidated Appropriations Act of 2008 (PL 110-161) --repealed the statutory provision placing TSA procurements under the AMS. As a result, the protester was unsure whether to file its protest with GAO or follow the procedures outlined by the AMS and file with the FAA's Office of Dispute Resolution for Acquisition. The protester filed in both venues, but when GAO advised the parties it possessed jurisdiction, the protester withdrew its ODRA protest, which was dismissed.

CICA


Under CICA, if an agency awarding a contract receives notice of a protest, the contracting officer must immediately direct the contractor to stop performance under the contract (31 USC 3553). The agency may override the automatic stay if it makes a written finding that performance is in the government's best interests or urgent and compelling circumstances do not permit waiting for a GAO decision on the protest. While TSA initially complied with the CICA requirement, it cancelled the stay of performance on grounds the procurement fell under the purview of the AMS. TSA also did not issue any findings as required by 31 USC 3553(d)(3)(C) for a formal override of the automatic stay. The protester subsequently filed a complaint with the CFC seeking a declaratory judgment on the applicability of the CICA automatic stay of performance requirement. TSA argued the CICA requirement applies only if the protest "is properly before GAO." However, the statute plainly states the automatic stay "kicks in" when a federal agency receives notice of a protest filed at GAO, even if the protest is ultimately determined to be beyond GAO's jurisdiction. Here, the TSA was a "federal agency" within the meaning of CICA and it received proper notice from GAO. Therefore, TSA was required to comply with the automatic stay provision whether or not the protest was properly filed with GAO, and its failure to do so was a violation of CICA. (Unisys Corp. v. U.S., et al., FedCl, 54 CCF 79,236)















 






 

 

(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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