The presumption of good faith presumes that government officials carry out their obligations during the performance of a government contract in good faith. The presumption is at its strongest when contractors allege quasi-criminal wrongdoing by government personnel acting in the course of their official duties. To overcome the presumption of good faith in this context, contractors must present “well-nigh irrefragable” proof. In other words, contractors must present evidence that cannot be refuted or disproved. Compared to the three standards of proof generally recognized by courts, the “well-nigh irrefragable” proof standard is the closest to the clear and convincing standard. This standard imposes a heavier burden on the contractor than imposed by the preponderance of the evidence standard but a somewhat lighter burden than requiring proof beyond a reasonable doubt, reserved for criminal cases. Clear and convincing evidence has also been described as evidence that produces an abiding conviction in the mind of the judge that the truth of the factual contention is highly probable.

The presumption of good faith can be difficult to overcome when applied in the context of allegations of quasi-criminal wrongdoing by government officials. Nevertheless, contractors may meet the “well-nigh irrefragable” proof standard if they present evidence of the government’s specific intent to injure the contractor. Such evidence may include government actions that amount to bad faith. Bad faith actions are motivated by malice, animus, conspiracy, or otherwise part of a course of governmental conduct designed to be oppressive. In the absence of evidence of the government officials’ specific intent to injure it, the contractor will find it challenging to overcome the strong presumption that the government’s administrative actions are correct and taken in good faith. Overcoming the presumption of good faith may be particularly difficult when a significant amount of time has passed between the occurrence of the underlying events and the contractor’s subsequent allegations of bad faith.

Acquisition planning on U.S. federal contracts requires the contracting activity to coordinate and integrate the efforts of all personnel responsible for the acquisition via a comprehensive plan that fulfills the government’s requirements in a timely manner and at reasonable cost. The Competition in Contracting Act (CICA) of 1984, implemented by Federal Acquisition Regulation (FAR) Part 6, mandates full and open competition in federal procurement. Consequently, while there are limited exceptions enumerated in FAR § 6.3, federal agencies must generally use competitive procedures in procuring products and services. Furthermore, federal agencies are expressly prohibited from entering contracts for property or services by utilizing non-competitive procedures when they have failed to properly plan the procurement in advance.

Contractors looking to challenge the Government’s use of non-competitive procedures in such improperly planned procurements must be prepared to demonstrate that the agency’s decision was unreasonable under the particular circumstances of that procurement. In 2014, the Bureau of Indian Affairs (BIA), an agency under the Department of Interior (DOI), was involved in a procurement contract for technology services. The procurement at issue was a Buy Indian Set-Aside conducted under the Buy Indian Act of 1910, and the eventual contract was awarded to an eligible non-incumbent contractor. However, a week before the conclusion of the predecessor contract, the incumbent contractor timely protested the award at the Government Accountability Office (GAO). In response, the BIA informed the GAO that it intended to take corrective action and requested that the GAO dismiss the incumbent’s protest.

The Competition in Contracting Act (CICA) mandates the use of procurement procedures enabling full and open competition in federal acquisition. Agencies may not place task or delivery orders that fall outside the scope of the underlying blanket purchase agreement (BPA) or indefinite delivery indefinite quantity (IDIQ) contract as such requirements are subject to full and open competition under CICA. In such protests, the protestors generally challenge the award against the master contract by alleging that the task or delivery order improperly exceeded the scope of the underlying master contract. The adjudicative forum must then decide whether material differences in scope exist between the order at issue and the relevant underlying master contract.

In B-412821, the Government Accountability Office (GAO) sustained such a bid protest challenging the issuance of an out-of-scope sole-source delivery order under a Government Services Administration (GSA) Federal Supply Schedule (FSS) Blanket Purchase Agreement (BPA). The protest involved the acquisition of Microsoft e-mail products for the Internal Revenue Service (IRS). The BPA was issued in 2013 for maintenance and software assurance services for the IRS’s existing inventory of Microsoft products and services for a period of three years. The BPA included a complete schedule of the Microsoft product licenses owned by the IRS and their quantities. Under the BPA, the IRS was expressly permitted to upgrade and use the latest version of each Microsoft product during the term of the BPA if it so chose. Additionally, if Microsoft products owned by the IRS became unsupported by the manufacturer, the IRS retained the right to convert its licenses to comparable, supported products at no cost. In other words, by utilizing this BPA, the IRS intended to keep its portfolio of Microsoft licenses up to date with the latest versions.

In procurement parlance, insourcing refers to an organizational decision to perform the work internally instead of procuring it from outside sources. As procuring entities, government agencies may, from time to time, decide to internally perform work that was previously contracted out via competitive procedures or otherwise choose to perform new work using agency employees and resources. While such occasions are relatively rare, contractors may need to challenge such government decisions to insource work. A potential example of such a scenario could involve a contractor challenging an agency’s decision not to issue a follow-on contract on which the contractor is the incumbent due to the agency’s decision to perform the work internally using government employees.

Protesting such insourcing decisions involves a situation in which choosing one protest forum over another may prove advantageous for prospective protestors. This is because when reviewing insourcing decisions, the Government Accountability Office’s (GAO) bid protest jurisdiction may be somewhat limited compared to that of the Court of Federal Claims (COFC). For instance, while the GAO routinely reviews agency decisions to cancel procurements to determine whether the cancellations were reasonable, it has been reticent to review such cancellations under its bid protest function when the work under canceled procurement is to be performed by government employees. This is because the GAO, a part of the legislative branch of the government, considers such insourcing decisions to be within the purview of government discretion and a matter of executive branch policy.