The Government Accountability Office (GAO), in TeamWendy, LLC, B-417700.2 (Oct. 16, 2019), recently clarified the scope of its authority to review bid protests involving the addition of products or services to the AbilityOne procurement list. As this author discussed in a recent Law360 article, the GAO’s decision in this case provides important guidance to protesters, intervenors, and procuring agencies alike.

What is the AbilityOne program?

In 1938, Congress created a program pursuant to the Javits-Wagner-O’Day (JWOD) Act that was intended to provide employment opportunities for persons who are blind (see 41 U.S.C. § 8502). In 1971, Congress expanded the program to include persons with severe disabilities.

Now known as the AbilityOne program, the program’s public-private structure consists of the federal, independent AbilityOne Commission to oversee the program, two central nonprofit agencies — SourceAmerica and the National Industries for the Blind (NIB) — to administer much of the program, and hundreds of qualified nonprofit agencies employing persons who are blind or severely disabled to provide products and services to federal agencies.

Under the program, the AbilityOne Commission has the exclusive authority to establish and maintain a procurement list of supplies and services provided by the qualified nonprofit agencies. The JWOD Act states that the AbilityOne procurement list is the mandatory source for federal agencies for any good or service on that list.

What are the key facts of the bid protest?

In TeamWendy, LLC, the protester argued that the procuring agency engaged in improper exchanges with NIB by requesting the addition of another company’s product to the AbilityOne procurement list. The protester also contended that these exchanges were “an improper attempt to procure [the other company’s product] on a sole-source basis.”

Before analyzing the merits of the protester’s arguments, the GAO noted the following:

GAO will not consider protests challenging the AbilityOne Commission’s determination regarding items to be included on the procurement list, as such determinations are within the exclusive authority vested in the Commission to establish and maintain the list in accordance with the overall purpose of the JWOD Act… In contrast, our Office will address the merits of protests challenging a procuring agency’s actions in the context of the JWOD Act and its implementing regulations. For example, we will review whether a procuring agency has met its obligation to procure products from the procurement list or is improperly procuring products that are not on the procurement list.

In light of the foregoing, the GAO then held that the decision at issue by NIB to propose the other company’s product for addition to the AbilityOne procurement list is not a matter that the GAO will review. In addition, the GAO held that the decision by the AbilityOne Commission to accept the recommendation by NIB regarding the addition of the product to the AbilityOne procurement list is not a matter that the GAO will review.

As such, the GAO went on to hold that, regardless of the procuring agency’s reason for requesting that NIB recommend the addition of the other company’s product to the AbilityOne procurement list, “these actions are not matters that [the GAO] will review as they are matters committed to the discretion of the AbilityOne Commission and its designated [central nonprofit agencies].” Therefore, the GAO dismissed the subject protest arguments.

What are the key takeaways?

The GAO’s recent decision in TeamWendy, LLC provides important clarification on the GAO’s authority to review bid protests involving AbilityOne procurements.

Specifically, the GAO reiterated that it generally will not consider bid protests challenging the AbilityOne Commission’s determinations regarding items to be added to the AbilityOne procurement list because such determinations are “within the exclusive authority” vested in the AbilityOne Commission “to establish and maintain” the procurement list “in accordance with the overall purpose of the JWOD Act.”

Nevertheless, the GAO clarified that it will address the merits of bid protests challenging a procuring agency’s actions in the context of the JWOD Act and its implementing regulations. For instance, the GAO noted that it will review protests questioning “whether a procuring agency has met its obligation to procure products from the procurement list or is improperly procuring products that are not on the procurement list.”