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Would you view the acquisition of COVID-19 tests as an “urgent and compelling” reason to depart from full and open competition? The Court of Federal Claims had an opportunity to weigh in on this notion when  Comprehensive Health Services, LLC (“CHS”) protested an award and challenged a decision of the Federal Emergency Management Agency (FEMA) to override the automatic stay of performance required by the Competition in Contracting Act (CICA).

In Comprehensive Health Servs., LLC v. United States, No. 20-1585C, 2020 WL 6881207 (Fed. Cl. Nov. 24, 2020), CHS attempted to delay the award of a contract for COVID-19 testing through the automatic implementation of a stay of award. The protester wanted a fair opportunity to compete for the contract, which the protester felt did not happen because the total time from the Request for Quote to the submission deadline was five hours and forty-seven minutes.

To justify FEMA’s quick suspense and ultimate sole-source award, FEMA required the Agency complete a Justification and Approval (J&A) for not using “full and open” competition based on “urgent and compelling circumstances per FAR 33.104(c)(2)(ii)”. After FEMA filed its J&A to override the stay, the protester again sought to implement the stay and delay the COVID-19 testing awarded.

The protester based its protest on two arguments: “(1) FEMA’s sole source award is contrary to statute and regulation and is an abuse of discretion as FEMA cannot show use of other than full and open competition is justified; and (2) FEMA’s sole source award rested on a lack of advance planning, contrary to statute and regulations.”

The Court relied on FEMA’s J&A in evaluating the override in light of the Reilly’s Wholesale factors, and the Court found FEMA’s argument persuasive that current circumstances were “urgent and compelling.” The three Reilly’s Wholesale factors, which are not required to be used, are as follows: (1) whether significant consequences will necessarily occur if the stay is not overridden; (2) the potential cost associated with the stay; and (3) the impact of the override on competition and the integrity of the procurement system.

The Court held that FEMA’s overriding of the automatic stay was justified in the unprecedented times of the COVID-19 pandemic and that it did not result from a lack of advance planning.  Comprehensive Health Services helps identify an example of urgent and compelling reasons to depart from full and open competition.

References

Comprehensive Health Servs., LLC v. United States, No. 20-1585C, 2020 WL 6881207 (Fed. Cl. Nov. 24, 2020)

Reilly’s Wholesale Produce v. United States, 73 Fed. Cl. 705, 711 (2006)

Author

Stephen Darby is an associate at Ward & Berry, PLLC. His practice typically focuses on all aspects of the bid protest process and civil litigation. Stephen is licensed to practice law in the District of Columbia.

Stephen Darby

Author Stephen Darby

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