As a company that conducts business within the sphere of government contracts, you may have come across GWACs (Government-wide Acquisition Contracts). While you already know that government contracts can be a landmine of tricky regulations and complex rules compliance, what you don’t know about GWACs and GSA protest rights can cost you.
In accordance with the Government Accountability Office’s (GAO’s) definition, a bid protest is a challenge to the award or proposed award of a contract for procurement of goods and services or a challenge to the terms of a solicitation for such a contract. Far 33.1 governs bid protests, generally; however, not all protests are allowable.
The FAR does not provide any limitation on protests under 33.1 for blanket purchase agreements (BPAs) or task/delivery orders. In particular, FAR 8.404(e) provides that “[t]he procedures under subpart 33.1 are applicable to the issuance of an order or the establishment of a BPA against a schedule contract.” However, this is not the case for General Services Administration Government-wide Acquisition Contracts (GSA GWACs). FAR 52.212-3 Offeror Representations and Certifications Form Reps and Certs.
GWACs are within the category of Indefinite Delivery Indefinite Quantity (IDIQ) FSS contracts but are unique because sometimes they may not be protested at all. FAR 16.505(a)(9) there narrows the permissible grounds for order protests. The exception to this general rule of no-protest is limited to cases where the contract exceeds $10 million or where the IDIQ contract exceeds the scope of the general contract under which it falls. See information about Bidding on GSA One Acquisition Solution for Integrated Services (OASIS Contracts)
In GSA Protests Are GWACS FSS Contracts and IDIQ Contracts Limited in the Same Way?
Not quite. In a recent case on this issue, the regulation and adopting commentary suggest that GSA FSS contracts are governed by a separate regulatory scheme apart from ordinary Indefinite Delivery contracts.
It concluded that, although a GSA FSS contract might be of the Indefinite Delivery type, as is the case here, it is governed by FAR Part 8 (the provision dealing with GSA FSS contracts), rather than by FAR Subpart 16.5. See more about Suspension and Debarment of Government Contractors.
It concluded that, although GSA FSS contracts might be of the Indefinite Delivery type, as is the case here, it is governed by FAR Part 8 (the provision dealing with GSA FSS contracts), rather than by FAR Subpart 16.5. FAR Part 8 does not contain similar restrictive language.
The court then concluded that, because FAR Subpart 16.5 does not apply to FSS contracts, neither should the statutory bar. Accordingly, we can conduct task/delivery orders and blanket purchase orders pursuant to 48 CFR Part 33, Subpart 33.1 Protests.
For help with GSA protests of government contracts or GWACS FSS procurements, call Watson & Associates, LLC at 1-866-601-5518.