Modern Contractor Solutions November 2024 - 29

Constr. Co., B-293105.18 (Jan. 17, 2006).
Even GAO concedes that if the contractor
lacks knowledge about whether the key
personnel will be available, the contractor is
not obligated to notify the agency. See NCI
Information Systems, Inc., B-417805.5 (Mar.
12, 2020).
Are " wet ink " signatures required for
bid bonds? For decades, GAO has said
that bid bonds are defective if they do not
have original " wet ink " signatures. See TJ's
Marine Constr. LLC, B-402227 (Jan. 7, 2010).
COFC disagrees, arguing that GAO has
misinterpreted its own previous decisions,
creating a requirement for wet-ink signatures
that never existed and was not rational.
See Togiak Mgmt. Servs., LLC v. United
States, 169 Fed. Cl. 83 (2023). The decision
analyzed GAO's earlier cases, concluding
that they focused on " material alterations "
to bid bonds, not whether the bid bond
was photocopied.
Does the Christian Doctrine apply to
solicitations? The Christian Doctrine is a
rule that means legally required (mandatory)
clauses must be read into contracts, even
if they were accidentally left out. See G.L.
Christian & Assocs. v. United States, 160 Ct.
Cl. 1, 312 F.2d 418 (1963). While both GAO
and COFC agree that these mandatory clauses
are included in contracts, they disagree about
whether they should be read into solicitations.
COFC has held that there is no relevant
difference between a solicitation and a
contract. See Transatlantic Lines LLC v.
United States, 68 Fed. Cl. 48, 53 (2005). GAO
argues that mandatory clauses cannot be
read into solicitations. See, Matter of: Ncs/
eml Jv, LLC, B-412277 (Jan. 14, 2016). GAO's
position has led to arguably inconsistent
outcomes that favor whichever outcome the
government prefers. When an agency wants
to uphold a protested award, GAO will refer
to the Christian Doctrine to avoid cancelling
the procurement. See Gorman-Rupp Co.,
B-237429 (Jan. 4, 1990); Linda Vista Indus.,
Inc., B-214447 (Oct. 2, 1984). But GAO will
also deny protests in similar situations where
the agency argues a missing mandatory
clause renders the solicitation defective. See
Matter of: Orbis Sibro, Inc., B-418165.7 (Apr.
12, 2021).
Do contract awardees have standing to
protest? Splits often arise when the contractor
first takes their bid protest to the GAO and
later to COFC for a second bite at the apple.
This pattern continues with GAO's categorical
claim that contract awardees always lack
standing to file bid protests. See Matter
of: Nat'l Air Cargo Grp., Inc., B-411830.2
(Mar. 9, 2016). COFC has flatly rejected
this conclusion, finding that an allegation
of " violations of statutes and regulations
governing the procurement process " may be
enough to allow the protest to proceed. See
Nat'l Air Cargo Grp., Inc. v. United States, 126
Fed. Cl. 281, 290 (2016).
Can contractors protest task order
awards? In other instances, COFC has simply
gone farther (so far) than GAO. The Federal
Acquisition Streamlining Act (FASA) prohibits
protests of task order contracts under $25
million. But in 2024, the Federal Circuit (COFC
must follow Federal Circuit precedent) said
that a protester could still protest if it was
challenging a violation of regulations under
the Tucker Act and not just the award of the
task order. GAO has yet to hear a case on
this point, and it is unclear whether it would
follow suit.
Can contractors protest other transaction
procurements? Similarly, GAO has been
unequivocal that it will not hear protests over
Other Transactions (OTs), because it claims
it lacks jurisdiction. COFC, however, has
entertained the possibility of reviewing these
procurements, which are not subject to the
normal federal regulations. See Indep. Rough
Terrain Ctr., LLC v. United States, 172 Fed. Cl.
250 (2024). Specifically, COFC may consider
reviewing an OT procurement protest if it
involves a follow-on contract. This decision
also indicated that COFC might have authority
to hear OT protests if the government is
seeking to procure " goods or services. "
Are discussions required for defense
contracts over $100 million? In some cases,
GAO and COFC arrive at the same conclusion,
but get there differently. Consider whether the
Army must equally engage in discussions with
all contractors under DFARS 215.306. See
IAP Worldwide Servs., Inc. v. United States,
159 Fed. Cl. 265, 314 (2022). Although COFC
disagreed with GAO's reasoning in Matter
of: Sci. Applications Int'l Corp., B-413501
(Nov. 9, 2016), it acknowledged that it is a
distinction without a difference and arrived
at the same conclusion: Agencies should
conduct discussions on contracts with a value
of $100 million or greater.
about the author
David Timm is a government contracts associate
at Fox Rothschild LLP. He helps contractors
when work with the government goes wrong. His
practice focuses on complex disputes, claims,
and bid protests over federal, state, and local
government contracts. Timm can be reached at
dtimm@foxrothschild.com.
www.mcsmag.com
NOVEMBER 2024
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Modern Contractor Solutions November 2024

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