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FASA Barred Protest of Sole-Source Delivery Order

The Court of Federal Claims dismissed a protest of a sole-source Economy Act procurement for lack of subject matter jurisdiction because the protest was in connection with the issuance or proposed issuance of a delivery order and was therefore barred by the Federal Acquisition Streamlining Act of 1994. The protester alleged the government's decision to procure supply management software without competition through the use of an interagency delivery order, as set forth in a Determination and Findings, violated the Competition in Contracting Act of 1984. The government moved to dismiss, arguing the protest was barred by FASA, which prohibits protests "in connection with the issuance or proposed issuance of a task or delivery order," but not protests contending an order increases the scope, period, or maximum value of the underlying contract, or protests involving an order valued in excess of $10 million (10 USC 2304c(e)). The protester maintained FASA did not apply because its protest involved the decision to procure the software, not the procurement process occurring thereafter.

Plain Language

The court found the protester's reading of FASA was contrary to the statute's plain language and the protest fell directly within FASA's bar. First, the protester essentially redacted the phase "in connection with." If Congress intended to bar protests involving only the actual "issuance" or "proposed issuance" of a delivery order,"then it could have drafted the FASA accordingly." Instead, it included the phrase "in connection with," which modifies the terms "issuance" and "proposed issuance," and defined the specific types of protests that are not authorized by FASA. Given the dictionary definitions of the words "connection" and "with," it was apparent the phrase "in connection with" encompassed occurrences that have a direct and causal relationship to the "issuance" or "proposed issuance" of a delivery order, and here, the decision to procure the software "noncompetitively through use [of] a delivery order [was], by its very nature, "in connection with" the "issuance" of that delivery order." Second, the protester's interpretation did not give meaning to and ignored FASA's "proposed issuance" language. Where there is no "issuance" of a delivery order, a protest involving the "proposed issuance" of a delivery order necessarily implicates a decision to conduct a procurement via a delivery order. Since the protester did not allege the delivery order exceeded the scope, period, or maximum value of the underlying contract, the protest was barred by FASA. (DataMill, Inc. v. U.S., FedCl, 54 CCF 79,293)




(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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