The government often adds products and services to its existing contracts by executing contract modifications and amending the relevant terms. Under the General Services Administration (GSA) Federal Supply Schedule (FSS) program, a vendor’s schedule contract may be modified to add product or service offerings and revise its price list. Such modifications are generally considered matters of contract administration and therefore may not be challenged in a bid protest. However, an exception to this general rule may arise under the Competition in Contracting Act’s (CICA) full and open competition requirements, which remain applicable notwithstanding the FSS program’s streamlined acquisition procedures. Under this exception, a protester’s allegations that a contract modification changes the work beyond the scope of the original contract place the protest within the Government Accountability Office’s (GAO) bid protest jurisdiction. This is because the additional work covered by the modification is otherwise subject to CICA’s competition requirements, unless a valid determination is obtained that deems the work appropriate for procurement on a sole-source basis. However, as with any protest, the protester must satisfy the requirement of being an interested party. Notably, prospective suppliers or subcontractors who supply competing products or services to FSS vendors may not raise such protests, as their economic interests are not considered sufficiently direct to confer interested party status.

Solicitations for federal contracts performed in foreign countries may include definitive responsibility criteria mandating compliance with the laws and requirements of the host nation. Such criteria are considered objective standards, included in the solicitation to evaluate the offerors’ ability to perform the contract. Procuring agencies may restrict competition using such requirements if the definitive responsibility criteria are reasonably necessary to meet the government’s minimum needs. If an offeror fails to meet specifically included responsibility criteria mandating compliance with foreign laws, it is deemed non-responsible and considered ineligible for an award. Of course, offerors may challenge solicitation terms requiring compliance with foreign laws as unduly restrictive of competition. In such cases, the procuring agency must establish that the solicitation terms containing the responsibility criteria are reasonably necessary to meet its minimum needs. While the agency’s explanation must withstand logical scrutiny to be considered adequate, an offeror’s disagreement with the explanation alone does not demonstrate that the agency’s reasoning is unreasonable. Ultimately, when solicitations for contracts involving performance in foreign countries incorporate definitive responsibility criteria based on foreign laws, prospective offerors must either comply with the terms of the solicitation or demonstrate that the relevant requirements are clearly unreasonable.

The rule of two requires that all contracts above the micro-purchase threshold be set-aside for small businesses, provided there is a reasonable expectation that two or more responsible small business concerns would submit offers at fair market prices and those offers are competitive in terms of quality and delivery. Under the recent overhaul of the Federal Acquisition Regulation (FAR), the rule of two was retained for contracts above the simplified acquisition threshold (SAT), in addition to the statutory requirement that the rule apply to contracts between the micro-purchase and simplified acquisition thresholds. Notably, the revised FAR part 19 removes the requirement for the government to consider socioeconomic set-asides before small-business set-asides. Furthermore, the revised FAR 19.104, which was previously located at FAR 19.502-2, clarifies that, while small business set-asides are required at the master contract level under the rule of two, set-asides are encouraged but not mandatory at the order level for multiple-award contracts. It is also within the contracting officer’s (CO) discretion to follow the rule of two for orders issued under the Federal Supply Schedule (FSS).