When government contracting agencies assert urgent and compelling circumstances, it is usually a predicate for override the Competition in Contracting Act (CICA Contracting) Automatic Stay or to justify a sole source award. Although agencies may heavily document its reasons, a successful bid protest can be possible if the contractor focused on the stated agency’s reasons.
CICA Contracting Act — Urgent and Compelling Circumstances with Automatic Stays
CICA contracting allows the automatic stay of contract performance while a bid protest is at the GAO. 31 USC 3553(d)(3). CICA contracting allows a contracting agency to override the automatic stay and proceed with contract performance upon a written finding that either “performance of the contract is in the best interests of the United States” or “urgent and compelling circumstances that significantly affect interests of the United States will not permit waiting for the decision of the Comptroller General concerning the protest.” See 31 USC 3553(d)(3)(C).
Urgent and compelling circumstances simply do not rest on what the agency says. Instead, the government must also justify the override by showing what adverse consequences will result from the stay.
Urgent and Compelling Circumstances in Sole-Source Procurements
As compared to the automatic stay provisions, the CICA Contracting Act also allows government contracting agencies to avoid the full and open competition requirements. To avoid using competitive procedures, the agency can invoke urgent and compelling circumstances when the head of an agency shows written justification when:
- the property or services needed by the agency are available from only one responsible source or only from a limited number of responsible sources and no other type of property or services will satisfy the needs of the agency;
- the agency’s need for the property or services is of such an unusual and compelling urgency that the United States would be seriously injured unless the agency is permitted to limit the number of sources from which it solicits bids or proposals . . . .
Lack of Planning Does Not Excuse the Agency
Government contracting agencies are required to put forth some level of reasonable planning for their procurement needs. However, this may not always happen. When contractors contemplate filing a GAO bid protest which challenges the agency’s urgent and compelling circumstances, it can inquire into the agency’s planning practices.
Procurement law is clear that an agency may not justify a sole-source award by reason of its own “lack of advance planning.” 10 USCA 2304(f)(4)(A). In other words, creating an emergency does not support urgent and compelling circumstances.