The General Services Administration (GSA) Federal Supply Schedule (FSS) program allows federal agencies to acquire services from pre-approved vendors via simplified acquisition procedures of Federal Acquisition Regulation (FAR) Part 8. When utilizing the FSS program, procuring agencies may not purchase “open market items,” which are any services not already listed on a vendor’s GSA schedule. At the same time, the services on a vendor’s schedule may not always directly correlate to the requirements of the solicitation. In such situations, the relevant inquiry is whether the required services are within the scope of the vendor’s schedule contract, as reasonably interpreted. In deciding whether their GSA schedule covers services being sought in the solicitation, contractors should determine whether the required function in the solicitation is the same as the function covered under their schedule contract. In this regard, services are not considered open market items if they are within the scope of particular line items on the FSS contract. Additionally, while the broader, general scope of a schedule contract and the description of its Special Item Numbers (SINs) are relevant in determining the scope of line items, such descriptions are not dispositive to resolve whether the services are covered by the schedule contract.

While the Contract Disputes Act (CDA) does not define a claim, the Federal Acquisition Regulation (FAR) § 2.101 defines a monetary claim as a written demand or assertion by a contracting party seeking, as a matter of right, the payment of money in a “sum certain.” Since the sum certain requirement is not included in the CDA, the Federal Circuit has held that the requirement is non-jurisdictional. Stated another way, a CDA claim does not need to include a sum certain for the Court of Federal Claims (COFC) or a relevant Board of Contract Appeals to exercise jurisdiction over it. Instead, the sum certain requirement is considered an element of a claim for relief that the contractor must satisfy in order to recover. The distinction is important because parties may raise a motion challenging the Court’s or the Board’s jurisdiction at any time. Meanwhile, if a party presents a defense based on the sum certain requirement after litigation has far progressed, it may be deemed to have forfeited the defense entirely. Therefore, the sum certain requirement is a mandatory but non-jurisdictional claim processing rule that is subject to forfeiture. It is somewhat unclear exactly when the claims litigation progresses to a point where a party loses the right to challenge a deficient sum certain. However, the Federal Circuit has indicated that forfeiture may apply as soon as the merits of the case are evaluated, including after the summary judgment stage.

The government may use the sole-source authority in Federal Acquisition Regulation (FAR) § 6.302-1 when there is a reasonable basis to conclude that its minimum needs can only be satisfied by one responsible source. In this regard, a procuring agency has the discretion to determine its needs and the best method to accommodate them, especially in procurements involving matters of national defense or human safety. Protesters disagreement with the government’s judgment concerning its needs, without more, is insufficient to prove that the government’s judgment is unreasonable. However, even in such procurements, potential alternative sources must be afforded a meaningful opportunity to demonstrate their ability to meet the agency’s needs. When prospective sources are excluded from competition in favor of a sole-source award without the chance to demonstrate their ability to meet the requirement, they are entitled to file a bid protest provided they qualify as an interested party. To qualify as an interested party to file a Government Accountability Office (GAO) protest, the protester must be eligible for the award based on the current record. A protester is not considered an interested party if it is not eligible to receive a contract award even if its protest is to be sustained.

In solicitations that require the submission of key personnel resumes, the resumes are considered a material solicitation requirement. Thus, offerors have a duty to notify the procuring agency if one or more of their proposed key personnel become unavailable to perform. The procuring agency may proceed in one of two ways once it receives notification of the unavailability of a key employee from an offeror. It can either evaluate the offeror’s proposal as submitted and reject the proposal as technically unacceptable for failing to meet a material requirement, or the agency may open discussions with all remaining offerors to permit proposal revisions. An offeror must notify the agency of a key employee’s unavailability even when the employee signs a letter of commitment before proposal submission but subsequently resigns or retires during the evaluation period. Alternatively, in addition to the letter of commitment, the offeror must be prepared to present evidence of the employee’s reaffirmation of availability or willingness to return to the offeror’s employment. In this regard, the primary consideration is whether the offeror has actual knowledge of the key employee’s unavailability because the duty to notify the agency is not triggered otherwise. Notably, despite the employee’s resignation or retirement, the Government Accountability Office (GAO) will not find an offeror to have actual knowledge of a key employee’s unavailability if the offeror can advance a credible basis to deny such actual knowledge.