See you in court

Aronie: Companies are too hesitant to turn to the courts or the general accounting office to protect their rights

At the conclusion of every episode of "The People's Court," the early 1980's TV show that was a precursor to the unfortunate blaze of "reality" court shows, interviewer Doug Llewellyn would say to the audience, "If you have a problem, don't take the law into your own hands. Take them to court."

I am by no means a proponent of frivolous lawsuits. But I sometimes think companies are too hesitant to turn to the courts — or, more often in federal procurements, the General Accounting Office — to protect their rights. This is especially true in the context of the General Services Administration's multiple-award schedule contract program.

Although GAO historically has taken a narrow view of the aspects of a schedule procurement that can be protested, in recent years it has demonstrated a much greater willingness to hear certain types of protests brought by vendors that have schedule contracts. Unfortunately, this upsurge in schedule protests has gone unnoticed by many vendors accustomed to GAO's traditional aversion to schedule objections and they fail to consider this avenue for relief, even when a protest may be warranted.

Sometimes a protest is necessary. For example, agencies making schedule buys generally are not required to comply with the procedural requirements of Federal Acquisition Regulation Part 15, which governs the submission and evaluation of competitive proposals. However, if an agency states that it is following such rules, it must abide by them.

Accordingly, GAO has sustained protests in which an ordering agency failed to comply with certain FAR Part 15 requirements, such as the rules for selecting the best-value proposal, conducting discussions with offerors or adhering to stated evaluation criteria.

Likewise, GAO has sustained a protest in which the purchasing agency failed to furnish a copy of the request for quotations to an appropriate number of vendors and in which the agency failed to consider the availability of a similar product on a different schedule before making an award.

GAO officials have suggested that, depending on circumstances, they may consider protests challenging the reasonableness of the amount of time given by an agency to respond to an RFQ.

Therefore, all hope is not lost for a schedule vendor disappointed by the decision of a purchasing agency. Keep in mind, however, that GAO has made it clear that it will accept only a narrow range of protest issues relating to the multiple-award schedule program.

Vendors also need to be cognizant of the complex — and unforgiving — timeliness rules that govern the filing of bid protests. One misstep and you could see the doors of the people's court — that is, GAO — slam shut before your eyes.

Aronie is a partner in the government contracts group of Sheppard, Mullin, Richter & Hampton in Washington, D.C. He can be reached at jaronie@sheppardmullin.com or (202) 218-0039.

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