Government Contracts District Court Wouldn’t Consider de facto Debarment Claim
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Tuesday, February 26, 2019

District Court Wouldn’t Consider de facto Debarment Claim

By Government Contracts Editorial Staff

The District Court for the Northern District of Alabama dismissed a de facto debarment claim because the claim challenged the proposed award or award of a contract and was within the Court of Federal Claims’ exclusive jurisdiction under 28 USC 1491(b)(1). The contractor, which held a blanket purchase agreement, asserted the government took actions to prevent it from competing for or obtaining new task orders. Focusing on a task order for which it was the incumbent, the contractor alleged the government improperly attempted to set aside the follow-on work for small businesses, used a different contracting vehicle, and “when those tactics failed,” issued a new solicitation for “full and open” competition and awarded the contract to another offeror based on a “sham discriminator.” After unsuccessful protests before the Government Accountability Office (33 CGEN ¶116,140) and the CFC (63 CCF ¶81,559), the contractor requested the district court to stay the expiration of its TO along with “any other actions constituting a de facto debarment of [the contractor].” The contractor argued the government’s actions preventing it from competing for or receiving contracts—improperly setting aside jobs for small businesses, using different contract vehicles, and reducing its existing work—were not actions that could be protested and the district court was the only venue in which it could obtain relief.

ADRA’s Broad Scope. However, the Administrative Disputes Resolution Act’s amendment of the Tucker Act and its sunset provision for district court jurisdiction provided that the CFC has exclusive jurisdiction to “render judgment on an action by an interested party objecting … to a proposed award or the award of a contract …” (§1491(b)(1)). Here, there was no question the contractor was challenging “a proposed award or the award of a contract,” and even viewing its allegations solely as a de facto debarment claim, the contractor alleged it was prevented from competing for work on other contracts and was challenging the award of those contracts to other entities. The fact the contractor raised somewhat different issues before the CFC did not mean the issues did not constitute a challenge to “a proposed award or the award of a contract.” Further, the broad definition of “procurement” as including “all stages of the process of acquiring property or services” (54 CCF ¶79,271) made it clear all of the government’s alleged improper activity fell within the procurement process. (Sigmatech, Inc. v. Dept. of Defense, et al., DC ND Ala, 63 CCF ¶81,584).

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