Let Bygones Be Bygones - Except When It Comes To "Out of Scope" Modifications

After an unsuccessful bid protest, many contractors assume that their chance at getting a piece of the action has passed. They assume that they have exhausted their remedies and that all of the spoils inevitably will go to the victor. They let bygones be bygones and move-on to the next capture opportunity and ignore their competitor’s performance under the awarded contract.

The contractors’ actions are not completely unjustified. Sometimes it is best to cut your losses and move on. As a general matter, the GAO does not review matters pertaining to an agency’s contract administration decisions. 4 C.F.R. § 21.5(a). Contract modifications and changes fall into this category and bid protests raising issues related to the issuance of modifications or changes generally will not be considered by the GAO. Id.

At other times, however, it may be to a contractor’s benefit to have a long memory and a watchful eye. The Competition in Contracting Act (“CICA”) requires agencies to use full and open competition when acquiring goods or services. 10 U.S.C. § 2304.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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