Full and open competition is a fundamental tenet of the U.S. Federal Procurement system. The Competition in Contracting Act (CICA) of 1984 guarantees full and open competition to contractors competing for federal government contracts. Federal Acquisition Regulation (FAR) part 6 and its various subparts implement CICA. Notably, FAR subpart 6.2 provides for full and open competition after set-asides are implemented to narrow sources. Meanwhile, FAR Subpart 6.3 provides seven limited exceptions to full and open competition listed in subsections 6.302–1 through 6.302–7. Issues arising from the government’s application of exceptions to full and open competition listed in FAR 6.3 form the basis for bid protests. When avoiding full and open competition by implicating one of the seven narrow exceptions provided in FAR 6.302, contracting officers (COs) and government officials must meet specifically enumerated procedural requirements. For instance, when invoking an exception listed in FAR 6.302, agencies must execute a Justification and Approval (J&A) or Determination and Findings (D&F) document setting forth the basis for the procurement not being subject to full and open competition. Contractors looking to file a pre-award protest due to a lack of full and open competition may challenge the agency’s rationale in the J&A and D&F documents as legally insufficient.

Successfully challenging contract modification awards at the Government Accountability Office (GAO) under its bid protest function requires a showing that the modification at issue is outside the original scope of the contract under which it is being awarded. Additionally, the protestor must demonstrate competitive prejudice. That is, had the modification requirement been competed under a separate contract, the protestor would have had a substantial chance of receiving the award. The GAO generally does not review the propriety of contract modifications as it has determined that such matters fall outside the scope of its bid protest function. This is because contract modifications are usually contract administration actions that are not reviewable under the GAO’s bid protest function. Specifically, 4 C.F.R. § 21.5(a) requires the GAO to dismiss protests relating to the administration of an existing contract since contract administration is within the discretion of the agency and any administrative disputes between the contractor and the agency are resolved pursuant to the disputes clause of the contract and Contract Disputes Act.

However, the GAO recognizes that when the planned modifications are outside the scope of the contract, they may violate competition requirements. Therefore, a review of the scope of the modifications is permitted at the GAO when the protestor alleges that the modification exceeds the scope of the original underlying contract. In such cases, the primary GAO inquiry is not whether the contract modification is significant in terms of contract value or additional work. Instead, the inquiry is focused on resolving whether a material difference exists between the scope of the original and the modified contract. This inquiry is more akin to a comprehensive totality of circumstances analysis where the GAO reviews the original and modified contracts to compare the type of work, expended costs, and the period of performance. Additionally, the GAO examines the original solicitation to determine whether it adequately indicated to potential offerors that the type of change the modification created could be reasonably anticipated by interested offerors during the solicitation period.

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.

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.