Government Contracts CFC Upholds Override of Border Fence Construction Stay
Monday, June 24, 2019

CFC Upholds Override of Border Fence Construction Stay

By Government Contracts Editorial Staff

The Court of Federal Claims rejected a challenge to the government’s decision to override a Competition in Contracting Act automatic stay because the protester failed to show the override was irrational or illegal, and the balance of the equities favored the government. The government awarded a sole source undefinitized contract action for border fence construction near El Paso after the President issued a proclamation declaring a national emergency concerning the security of the United States at the southern border (84 FR 4949). The justification and approval stated the government could not spend further time competing and negotiating the contract if the work was to be completed within the 18-month delivery schedule, and a “traditional, fully competed approach” would require 9 to 12 months just to make an award. The protester challenged the award in the Government Accountability Office, which triggered CICA’s automatic 100-day stay of contract performance (31 USC 3553(d)(3)(A)). The government subsequently concluded in a 12-page determination and findings that “urgent and compelling circumstances that significantly affect [the government’s interests] will not permit waiting for [GAO’s decision]” and that contract performance should continue as permitted by 31 USC 3553(d)(3)(C).

D&F Considered Factors. According to the protester, the government did not follow AFARS 5133.104(b)(a)(A), which requires a D&F overriding a CICA stay based on urgent and compelling circumstances to address four factors. However, the D&F clearly laid out the government’s consideration of the significant adverse consequences for proceeding with the stay in place. The D&F explicitly stated that large quantities of illicit narcotics pass through the border area covered by the award, and the court would not second guess the President’s conclusion that this presented an urgent and compelling danger to the health and welfare of American citizens and residents. The government also clearly addressed reasonable alternatives to the override. Given the project’s timeline and the specter of expiring funds, the court again refused to substitute its judgment for the President’s.

Calculus Shifted. Although some of the analysis with respect to the third factor—the potential cost of the override compared with proceeding without it—was “misplaced,” the D&F met the requirement. The government’s risk analysis, which concluded that the delay created by a 100-day stay would cost approximately $4 million, did not address the cost to the government if GAO sustained the protest and the government was forced to recompete the work. However, the government did consider the nonmonetary costs associated with a stay of performance (humanitarian and border security concerns) and found them “too great to ignore,” and this was sufficient. Finally, consideration of the impact on competition and the integrity of the procurement system was “largely missing from the government’s calculus in the D&F.” Nevertheless, the government’s consideration of the merits of the underlying GAO protest was sufficient to meet the fourth prong of AFARS 5133.104. Under normal circumstances, the government would be required to consider whether an override would thwart CICA or other legal requirements, but when the government faces a declared national emergency and has authorized use of non-competitive procurement procedures, the “calculus necessarily shifts.” The President’s declaration of a national emergency was “the anvil that [fell] on the scale of justice in favor of the government in these circumstances.” (Fisher Sand & Gravel Co. v. U.S., et al., FedCl, 63 CCF ¶81,673)

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