procurement regulations in the united states

See generally FAR 33.103. Application of these criteria, however, involves a number of highly discretionary determinations, such as whether award will be based solely on price and price-related factors using sealed bidding under FAR Part 14, or a combination of price and non-price factors using competitive negotiation under Part 15. Rarely do procuring agencies decline to follow the GAO’s recommendations. FAR Part 25 governs acquisitions of foreign supplies, services, and construction materials, and, in some cases, domestic sources may receive preference over foreign sources. For most procurements, offerors must also be registered in the System for Award Management (“SAM”) (www.sam.gov), which requires the offeror to complete representations and certifications. The rules governing sealed bidding are set forth in FAR Subpart 14.4; the rules for Schedule contracts are in FAR Subpart 8.4; and the rules for simplified acquisitions are in FAR Subpart 13.1. 6.2        What is the scope for negotiation with the preferred bidder following the submission of a final tender? See FAR Subpart 33.103. ch. Parties aggrieved in the procurement process may seek relief by filing a protest with the GAO or the procuring agency, or by filing an action in the Court of Federal Claims. For example, if an offeror seeks to file a pre-award protest challenging the terms of a solicitation, it must file the protest prior to the time set for receipt of proposals. ch. See FAR 15.206. The limitation periods set out above are generally not subject to being shortened. The field of organ donation and transplantation is one of the most regulated areas of health care today. See, e.g., 10 U.S.C. The current threshold values for federal procurements are US$182,000 for contracts for goods and services and US$7,008,000 for construction contracts. See 85 Fed. 27,098 (May 6, 2020) (adopting final rule revising the FAR to address Section 5000C). Purchases under the micro-purchase threshold of $10,000 are subject to further simplified procedures in FAR Subpart 13.2. Procedures for sealed bidding, which is not often used in federal procurement, are in FAR Part 14. The Federal Acquisition Regulation (“FAR”) and agency FAR Supplements reflect the regulatory implementation of the governing statutes and provide uniform policies and procedures for most federal agency acquisitions. Companies contracting with the government are subject to audit and oversight from various government entities and must be mindful of applicable recordkeeping and reporting requirements. § 20113(e). Other factors fuelling the scandal included the alleged millions of dollars paid by intermediaries as bribes and the possible alteration of procurement specifications to help sway the contract award … PPPs often involve the participation of federal, state, and local government entities. If not, what are the underlying principles governing these issues? CHAPTER 20 Regulatory Compliance As you may imagine, numerous laws and governmental regulations—federal, state, and local—affect procurement activities to one degree or another in the United States. For a COFC protest, there are no strict timeliness limitations for post-award protests, although a delay in filing a protest at the COFC may harm a protester’s ability to receive the remedy it seeks. See Consortium HSG Technischer Service GmbH et al., B-292699.6, June 4, 2004, 2004 CPD ¶ 134. Agencies may also require specific qualifications, certifications, or licenses that may be unavailable to firms in certain jurisdictions, such as being a member of a particular international organization. This website uses cookies to improve your experience. COURT OF CLAIMS INTERPRETATION OF PAUL V. UNITED STATES-REGULATIONS APPLIED LIKE STATUTES The Court of Claims, citing Paul v. United States, has gone to the extent of reading into a government Capehart Housing Act contract a standard-form military ... procurement," it has now authorized administrative officials to restrict the application of local regulations which are in conflict. Agencies may consider performance risk in evaluating tenders. These cookies will be stored in your browser only with your consent. The bid protest process discussed in Item Nos. Although agencies are encouraged to seek industry input generally in developing a solicitation (see FAR 15.201), there are strict rules prohibiting bidders from gaining an unfair competitive advantage by advising an agency on how to prepare solicitations. See Tuftco Corp. v. U.S., 614 F.2d 740, 745 (Ct. Cl. Any cookies that may not be particularly necessary for the website to function and is used specifically to collect user personal data via analytics, ads, other embedded contents are termed as non-necessary cookies. The rules governing organisational and consultant conflicts of interest are in FAR Subpart 9.5, and the rules governing contractor employee conflicts of interest are in FAR Subpart 3.11. The GAO resolves hundreds of protests each year by written decision. In addition to the sophisticated body of federal procurement law that has developed over the years, general contract law and certain criminal laws also apply to parties that contract with the federal government. A basic tenet of each of these systems is a strong preference for full and open competition. This provision sets a minimum time limit, however, and the response time can be longer. Commercial items are supplies that are customarily used by the general public or by non-government entities for purposes other than government purposes, or services sold competitively in substantial quantities in the commercial marketplace based on established catalog or market prices for specific tasks performed. ch. See FAR 16.505(b). An agency may also limit the number of proposals eligible for award by establishing a “competitive range” composed of the most highly rated tenderers. Lawyers on our team have particular experience in state and local procurement laws and regulations in the District of Columbia, California, Florida, Illinois, Georgia, Massachusetts, Maryland, New York and Virginia. 13, protests can be filed with the contracting agency, GAO, or the COFC. Potential sources can respond to the solicitation by submitting a quotation. Contractors are required to make annual representations and certifications to the government, which include topics such as small business status, CAS coverage, and criminal violations. 1980). For individual task and delivery order competitions under multiple-award IDIQ contracts over US$5.5 million, the rules in FAR Subpart 15.5 apply. Other situations, including sales of some or all of the contractor’s assets to a third party, usually require a formal novation agreement between the contractor and the agency. As discussed above, purchases under the simplified acquisition threshold of $250,000 are subject to the simplified acquisition procedures in FAR Subpart 13.3. When FAR Part 15 procedures are used, offerors are entitled to request a debriefing that provides a summary of the rationale for the award or the elimination of the offeror from the competition. Official websites use .gov. CICA permits the use of other than full and open competition, including through the issuance of sole source contract awards, only in the following circumstances: A potential offeror can challenge an agency’s decision to restrict competition or award through other than full and open competition using the bid protest processes discussed above in response to Item Nos. Non-federal government entities, such as states, municipalities, regulated utilities, universities and other public or quasi-public institutions and entities often have procurement codes or policies that have some similarities to FAR-based procurements. 25); The Competition in Contracting Act (“CICA”), codified throughout several titles of the U.S.C. When FAR Part 15 procedures are used, offerors are entitled to request a debriefing that provides a summary of the rationale for the award or the elimination of the offeror from the competition. Agencies must follow the evaluation scheme set forth in the solicitation when selecting an offeror for award. For example, TINA requires contractors to provide certified cost or pricing data to assist the government in determining whether contract prices are fair and reasonable for many contract actions over $2 million. 1.5        How does the regime relate to supra-national regimes including the GPA, EU rules and other international agreements? Agencies must promptly notify contractors when they are eliminated from the competitive range. If a party protests within 10 days of award, or within five days after a requested and required debriefing, the procuring agency must automatically suspend performance of the awarded contract, pending the outcome of the protest. 7.2        Are there special rules in relation to PPPs and what are the principal issues that arise in relation to them? Canada is a party to a number of bilateral and multilateral international agreements that establish rules for the procurement of certain supplies and services by national governments that are designed to give foreign parties expanded, but still restricted access to each other’s markets. See FAR 33.104(c)(2). In certain cases, as a result of a treaty or other agreement entered into by the U.S. Government with certain foreign governments, eligible products from WTO GPA and/or countries that are parties to free trade agreements with the United States are entitled to nondiscriminatory treatment in procurements conducted under the FAR. 5.7        What is the likely timescale if an application for remedies is made? 1.2        What are the basic underlying principles of the regime (e.g. Tenderers that submit proposals or that plan to submit proposals in response to a federal agency’s solicitation may “protest” the procuring agency’s decision with respect to the procurement, and the vast majority of disappointed tenderers file such protests with the Government Accountability Office (“GAO”), which has authority under 31 U.S.C. Please specify the main stages of each procedure and whether there is a free choice amongst them. See U.S. Gov’t Accountability Off., GAO-20-662, COVID-19 Contracting: Observations on Contractor Paid Leave Reimbursement Guidance and Use 4-10 (Sept. 2020). Despite the requirement that the Buy American provisions be appli… If an agency acquires supplies or services through another agency, such “interagency acquisitions” may be governed by the Economy Act and FAR Subpart 17.5. ch. The Office of the Procurement Executive (A/OPE) provides management direction and leadership over Department-wide acquisition and federal assistance policies and the full range of acquisitions and federal assistance management services. ch. 11; the Clinger­Cohen Act, 40 U.S.C. Fried, Frank, Harris, Shriver & Jacobson LLP, Fried, Frank, Harris, Shriver & Jacobson LLP, The International Comparative Legal Guides and the International Business Reports are published by: Global Legal Group, This guide is certainly practical and useful for us.Francis Walschot - AGORIA, © 2002-2021 Copyright: ICLG.com | Our Privacy, Unlock 3 FREE PDF chapters by registering with us FREE Disappointed tenderers also may file an action seeking injunctive relief in the United States Court of Federal Claims. 16, foreign offerors will not be eligible for procurements that require the offeror to have a security clearance to access classified information. When the supplies or services required by the agency are available from only one responsible source, or, for DoD, NASA, and the Coast Guard, from only one or a limited number of responsible sources, and no other type of supplies or services will satisfy agency requirements. For instance, if the GAO determines that an award did not comply with applicable statutes or regulations or solicitation terms, it may recommend that the procuring agency terminate the contract, re-compete the contract, amend the solicitation, or award the contract to the protester. A mere change in the corporate name should have no effect on a proposal’s acceptability. Government procurement in the United States addresses the federal government's need to acquire goods, services (including construction), and interests in real property. § 9101. Reg. 5.8        What are the leading examples of cases in which remedies measures have been obtained? The COFC, on the other hand, has the authority to issue injunctions prohibiting the agency from moving forward with the awarded contract, which in effect forces the agency to take corrective action. ch. The FAR generally governs acquisitions by federal “executive agencies,” which are defined as executive departments, military departments, independent establishments of the federal executive branch, as defined in 5 U.S.C. 6.1        Does the legislation govern changes to contract specifications, changes to the timetable, changes to contract conditions (including extensions) and changes to the membership of bidding consortia pre-contract award? Most significant, however, is Section 3610 of the CARES Act. These values are adjusted approximately every two years. As public procurement accounts for a substantial portion of the taxpayers’ money, governments are expected to carry it out efficiently and with high standards of conduct in order to ensure high quality of service delivery and safeguard the public interest. There are no specific minimum timescales for federal procurement. For example, military procurement, which is primarily carried out by the Department of Defense, is subject to special rules found in the Department of Defense FAR Supplement (“DFARS”) and in guidance published by the Principal Director, Defense Pricing and Contracting. Procuring agencies are authorised to take voluntary corrective action in response to a protest to address issues identified in the protest. Therefore, an overseas-based offeror with a subsidiary in the United States and a U.S. subsidiary with a foreign parent will generally have the same rights and remedies as other offerors, unless an agency has enacted competition limitations under CICA that would affect a foreign offeror or an offeror with a foreign parent. The applicability of many specific statutory and regulatory requirements depends on the dollar value of the procurement and/or contract action. 2.4        Are there aggregation and/or anti-avoidance rules? Of concern to Canada has been the provision in the legislation that imposes a requirement that “all iron, steel and manufactured goods” used in the construction and repair of “public works and public buildings” funded by the Recovery Act be produced in the United States. See FAR 15.305(a). US state and local government procurements are not examined in this article, but are subject to similar requirements; indeed, many of the requirements discussed apply to state and local procurements when they are funded with federal monies. Agencies, however, issued their own agency-specific guidance for Section 3610 reimbursements that differed in some respects from the more general OMB guidance, although OMB has revised its guidance to minimize those differences. Our Mission The … § 5000C. In addition, when using the competitive negotiation procedures in FAR Part 15, an agency may decide to eliminate contractors from the competition after an initial evaluation of proposals. Also, tenderers may be suspended, debarred, or proposed for debarment (i.e., excluded from federal contracting) for a variety of civil or criminal offences or for non-compliance with contract requirements. Decisions of the COFC are appealable to the U.S. Court of Appeals for the Federal Circuit. Generally, the assignment of proposals “when such transfer is effected by operation of law, or merger, or corporate reorganisation, or sale of an entire business, or sale of an entire portion of a business embraced by a proposal” is permissible. For those procurements expected to exceed the simplified acquisition threshold (except for those involving commercial items), contracting officers generally must allow at least a 30-day response time from the date of the issuance of the solicitation. FAR Part 15 generally requires agencies to issue a solicitation that identifies the criteria that will be used to evaluate proposals and the relative importance of those criteria, and requires that agencies evaluate proposals solely on the basis of the identified criteria. The procurement regime in the United States is consistent with the WTO GPA. Of particular note are the various statutes targeting fraud, waste, and abuse of federal funds. & Budget, Exec. Government-Wide Procurement Policy Federal Acquisition Regulation (FAR) - The Department of Defense (DoD), GSA, and the National Aeronautics and Space Administration (NASA) jointly issue the FAR for use by executive agencies in acquiring goods and services. 3.8        What methods are available for joint procurements? Unsuccessful bidders may protest the award of a contract directly to the agency, or to the U.S. Government Accountability Office (“GAO”) or the U.S. Court of Federal Claims (“COFC”). See FAR 52.212-1(e). FAR Part 15 also permits agencies to engage in discussions with contractors about their proposals and to allow contractors to revise their proposals during those negotiations. Under FAR 31.103(g), procuring agencies must use their best efforts to resolve agency-level protests within 35 days of filing. In addition, federal procurement law strongly discourages agencies from unnecessarily or unjustifiably bundling or aggregating contract requirements in order to preclude small or disadvantaged businesses from participating in procurements as prime contractors. ch. 37; the Davis-Bacon Act, 40 U.S.C. FAR Subpart 25.4 concerns “Trade Agreements” and sets forth the rules for applying the WTO GPA to federal procurement, including certain exceptions. Reg. Attorneys’ fees vary greatly from one protest to another; however, protests are relatively less expensive than many complex civil litigation matters because protests are generally decided on an expedited schedule, and decisions are based on an administrative record without substantial discovery. Additionally, solicitations may require an evaluation of whether a tenderer’s offer is “realistic”, meaning too low. 5.1        Does the legislation provide for remedies and if so what is the general outline of this? 3.11      What are the rules on market engagement and the involvement of potential bidders in the preparation of a procurement procedure? Protests before the COFC are generally more expensive than protests before GAO, as the procedures applied by the COFC more closely resemble traditional rules of civil procedure. If a protester is not an interested party, none of the three protest venues will have jurisdiction over the protest. This website uses cookies to improve your experience while you navigate through the website. More and more frequently, agencies are procuring supplies and services by ordering them under multiple-award IDIQ contracts, or government-wide or multi-agency acquisition contracts. Congress has extended that expiration date three times through additional relief bills, with the comprehensive December 2020 spending and relief bill extending the date to March 31, 2021. By statute, price or cost to the government must be evaluated in every source selection, except in very limited circumstances. See FAR 15.306. For protests brought to the GAO, pre-award protests must be filed prior to the due date for the submission of proposals; post-award protests must be filed within 10 days of the date that the protester knew or should have known of the grounds for protest, or within 10 days of a requested and required debriefing. Federal procurement is governed primarily by Titles 10 and 41 of the United States Code. See FAR 15.202. There are about 500 companies that provide fleet management services throughout the United States. The federal agencies covered by the WTO GPA are listed in GPA Appendix I, United States Annex 1 (as updated by WT/LET/950, submitted June 7, 2014). Depending on the type of change, the modification may be made unilaterally by the contracting officer or may be negotiated by the parties. § 4003. FAR Part 15 solicitations must also notify offerors of the relative importance of the evaluation criteria and the extent to which the agency will make trade-offs among price and non-price factors. 281. These requirements must be disclosed in the solicitation, and the bid protest process can be used to challenge unreasonable restrictions that unnecessarily limit competition. There are also various timeliness rules that a protester must satisfy for the venues to have jurisdiction, depending on the posture of the procurement. Additionally, in 1831, the Supreme Court case United States v. Tingey, 30 U.S. 5 Pet. As the name implies, these are contracts awarded to multiple firms for supplies and/or services when the exact times and/or exact quantities of future deliveries are not known at the time of contract award. 71; The Federal Acquisition Streamlining Act, codified throughout 41 U.S.C. Foreign offerors’ rights and remedies are generally the same as offerors based within the United States. For example, the Trump Administration proposed new rules to strengthen domestic buying preferences in federal procurement. For procurements of commercial items in an amount greater than $25,000 or procurements under the simplified acquisition threshold, agencies must establish a solicitation response time that will afford potential offerors a reasonable opportunity to respond to each proposed contract action. 5.6        What remedies are available after contract signature? Pre-award changes to the bidding entity (i.e., through sale or corporate restructuring) may be allowed under certain circumstances. Purchases under $250,000 (the simplified acquisition threshold) are subject to streamlined regulatory requirements as outlined in FAR Subpart 13.3. Most federal procurements do not include an initial selection stage before solicitation documents are issued. If an offeror seeks to file a protest challenging its elimination from competition or the agency’s contract award, the timeliness rules vary by venue. The key legislation governing federal government contracting is codified in Title 41 of the United States Code (“U.S.C.”), and, with respect to the Department of Defense (“DoD”), the National Aeronautics and Space Administration (“NASA”), and the Coast Guard (an agency within the Department of Homeland Security), Title 10 of the United States Code. Debriefings may also take the form of iterative questions and answers that occur over several days. However, for acquisitions of commercial items, the government can establish a shorter period, or use a streamlined procedure by which the synopsis and the solicitation are combined. The regulations at 21 CFR Part 4 govern the GAO’s protest procedures, and only actual or prospective tenderers whose direct economic interest would be affected by the award of a contract may file or participate in a GAO protest. The notice, which also includes a variety of other information set forth in the FAR, must be published at least 15 days prior to the issuance of the solicitation. See FAR 42.1204. See FAR 19.201. Debriefings must be requested within three days, and the date when the debriefing concludes usually starts the time period for filing a bid protest. Current procurement opportunities can be reviewed at beta.SAM.gov. Small business participation in a tenderer’s subcontracting plan may be used as an evaluation factor. Title 41 of the United States Code for non-Department of Defense (DoD) procurements, and Title 10 for DoD procurements, provide the statutory guidance. In its discussion, the GAO explained that its jurisdiction under the Competition in Contracting Act of 1984 (CICA) and its Bid Protest Regulations permits it to review protests concerning alleged violations of procurement statutes and regulations in the award or proposed award of contracts for the procurement of goods and services, and solicitations leading to such award. Tenderers may be excluded from a competition at multiple stages of the procurement process. Federal tax law can also be relevant to federal procurement. However, through a process called “cooperative purchasing”, certain state and local government agencies may purchase information technology products, software, and other services, as well as certain alarm and signal systems and law enforcement and security equipment under Schedule contracts. As discussed above with respect to Item No. The Court of Federal Claims follows rules similar to those of the GAO with respect to the limitation period applicable to pre-award protests; but for post-award protests, the court considers the timeliness of such protests in connection with the decision of whether to order injunctive relief. Federal procurement laws and regulations change constantly. Based on the outcome of the corrective action, the agency may elect to terminate the awarded contract and select a new awardee. See FAR 43.103. The GAO, the Court of Federal Claims, and procuring agencies have wide latitude in structuring remedies in response to protests of awarded contracts. The procuring agency may follow the GAO’s recommendation, may implement more robust corrective action, or may cancel the procurement altogether. FAR 33.214 also encourages the use of Alternative Dispute Resolution (“ADR”). When the agency head determines that full and open competition is not in the public interest in the particular acquisition. However, agencies may seek pressure from contractors to include clauses in future contracts to address issues that have arisen during the COVID-19 pandemic. Under this procedure (see FAR Part 15), tenderers submit their best proposals to the procuring agency in response to the agency’s solicitation. CICA requires that agencies promote and provide for full and open competition. See (Hyperlink). S/WPGR/W/11/Add.6 to the WTO Working Party on GATS Rules (October 21, 1996); WTO Document No. If a contractor is suspended, proposed for debarment, or debarred, agencies may not solicit offers from, award contracts to, or consent to subcontracts with that contractor absent a compelling reason documented by the agency head.