Tag Archives: government contracts

Strategies for Responding to Bid Protests in Government Contracting

By: Coleman Jackson, Attorney & CPA
October 20, 2021

Strategies for Responding to Bid Protests in Government Contracting

Suppose your company is an unsuccessful bidder for a government contract or has won an award, and an unsuccessful bidder is protesting your prize. In that case, it is essential to defend your rights vigorously. In the federal market, bid protests are an integral oversight mechanism, ensuring that procurement statutes and regulations carry out federal acquisitions policy goals. Or Suppose a company believes the federal government failed to comply with the terms of a solicitation (i.e. IFB, RFP, RFQ, etc.) or applicable laws or regulations in a procurement transaction. In such instances as these, the company (bidder) must follow strict rules or face losing the right to protest. What is a bid protest?  A bid protest is a legal challenge to the government’s actions during the procurement phase, including evaluating bids/proposals and the award of a government contract.  The how, when, and where of bid protests are controlled by various laws and regulations.

Bid protests can be brought in different forums and are subject to strict timelines that must be followed appropriately. Whether defending a protest as a successful awardee, or prosecuting a protest as a disappointed bidder, all government contractors must understand the bid protest process to defend their contract awards from protest successfully or vindicate their rights to full and open competition as a protester. First of all, let’s clear up some confusion and doubts about the bid protest process.


Bid Protest Overview

Bid Protest Overview

Bid protests are legal challenges brought by bidders against the way the Government has conducted a procurement transaction.

An interested party may protest to the agency, the Government Accountability Office (GAO), or the United States Court of Federal Claims (COFC).

Which venue is best to bring a bid protest will depend upon various facts. Primary considerations include the value of the procurement to your company, the cost of pursuing a protest in the particular venue, whether the protest would be timely in the venue (i.e. a protest that is untimely in the GAO may be timely in the COFC), and whether the protest will involve information that requires a protective order (i.e., competitive communication is limited to the attorneys, and not disclosed to the companies involved). In recent years, most bid protests are filed with the GAO, so in our blog, we will focus on the GAO bid protest process.

GAO has defined the basic standard of its review of a bid protest as follows:“ The evaluation of an offeror’s proposal is a matter within the agency’s discretion. A protester’s mere disagreement with the agency’s judgment in its determination of the relative merit of competing proposals does not establish that the evaluation was unreasonable. While we will not substitute our judgment for that of the agency, we will question the agency’s conclusions where they are inconsistent with the solicitation criteria and applicable procurement statutes and regulations, undocumented, or not reasonably based.”


How many days you have to file a protest will depend the basis for the protest to begin with

How many days you have to file a protest will depend the basis for the protest to begin with. In general, if a protest is based on an obvious problem with the solicitation documents, the protest must be filed before the date the bid or proposal must be submitted. The purpose of this rule is to prevent a contractor from sitting on their rights to challenge what they believe to be an unfair solicitation, rolling the dice to see if they win, and then, if unsuccessful, filing a protest.

The time requirements for other protests, such as a challenge to the government’s decision to award the project to another company, will depend on the protest venue. At the GAO, a protest must be filed within ten days after the basis for the protest is known or should have been known. If a debriefing is requested, and the government is required to provide the debriefing (i.e., negotiated procurement under FAR Part 15), then the protest may be filed within ten days after the debriefing.

However, there are benefits to filing the protest even earlier because of automatic stay rule. An automatic stay (i.e., the government is required to withhold award and suspend contract performance) if the protest is filed with the GAO within five days of the offered mandatory debrief date or within ten days of contract award. A stay of performance can be very consequential since it can impact your remedy or ultimate relief. Without auto stay, the contract will continue to be performed, and there may not be any contract requirement left to award to you even if your protest is successful.


GAO attorney assigned to the protest

Once your protest is filed with the GAO, the agency has 30 days to provide the agency report (AR). The AR will include documents responsive to your protest arguments, including documents requested explicitly in your protest. The AR will consist of a statement by the contracting officer regarding the grounds of the protest and a legal memorandum from the agency’s lawyer. In addition, the AR will show what the agency did during the procurement process, which may bolster the initial protest or provide additional grounds for protest. Sometimes the agency refuses to provide certain requested documents, and the dispute has to be settled by the GAO attorney assigned to the protest.

The agency or an intervening awardee may request that all or part of your protest be dismissed. Such requests by the agency or intervenor are often based upon arguments of timeliness, standing, ripeness, and lack of prejudice. If a request for dismissal is filed, the protestor will have to file a response opposing the bid. If a dismissal request is submitted, it is often before the 30-day deadline for filing the AR.  This AR should be reviewed carefully and with skill because it often is a source of very helpful historical information pertaining to the government officials actions in award of government contracts under open and fair competition laws.

Once the AR is provided, the protestor has ten days to file comments responding to the agency’s arguments. If the protestor fails to address any ground of protest in its words, the GAO will deem the omitted environment as abandoned by the protestor.  The protestor must be meticulous when marshaling the facts; and the bid protestor must cogently and  thoroughly apply relevant government contracting legal principles when challenging government contract awards at the GAO or any other legal forum.

In addition to comments, as I mentioned in pasting before, a protestor often discovers additional grounds of protest upon reviewing the AR. Review the AR right away; because time is of the essence These different protest grounds have to be filed within ten days of receiving the AR (i.e., within ten days of knowing the basis for the protest ground). The agency will be required to file a supplemental AR in response, and the protestor will have to file additional comments. The process for supplemental protests is truncated (e.g., the GAO may require the supplemental AR to be filed within ten days instead of the 30 days allotted for the initial AR).

The agency may take corrective action at any point in the process. Remedial action by the agency is a recognition that they failed to comply with some part of the procurement process, and they are therefore correcting that mistake. The agency has broad discretion in corrective action, and it often includes a reevaluation of proposals or amendments to the solicitation. If the agency takes corrective action, the GAO will dismiss the portion of the protest related to the corrective action.

The GAO will issue its decision within 100 days of the filing of the protest. The GAO may deny or sustain the protest, in whole or part. If the protest is supported, the GAO will direct the agency to remedy the problem. If the GAO denies a protest, the protestor may refile the protest with the Court of Federal Claims.


Strategies for Responding to Bid Protests in Government Contracting

Understandably, clients often want to know the likelihood that their protest will be successful. However, the possibility of success or failure is fact-specific to each protest. Moreover, many successful protests are based upon the supplemental protest, which is not available to the protestor until the AR is filed. Statistically, however, the GAO has reported that the effectiveness rate of protests in the last several years is between 42% to 45%. That means nearly half of the protests filed result in the GAO sustaining the protest or the agency taking corrective action to remedy the mistakes cited in the protest.

You should promptly speak with an attorney and counselor if you believe the government has not abided by the terms of a solicitation or applicable government contracting laws and regulations. Timely guidance and evaluation of your potential bid protest are essential to meeting the stringent requirements for protesting government contract awards.  This is merely an overview of Strategies for Responding to Bid Protests in Government Contracting; knowledge and skill in government contract law, and proper evaluation of all the facts and circumstances are extremely important when pursuing legal strategies.

This law blog is written by the Taxation | Litigation | Immigration Law Firm of Coleman Jackson, P.C. for educational purposes; it does not create an attorney-client relationship between this law firm and its reader.  You should consult with legal counsel in your geographical area with respect to any legal issues impacting you, your family or business.

Coleman Jackson, P.C. | Taxation, Litigation, Immigration Law Firm | English (214) 599-0431 | Spanish (214) 599-0432 | Portuguese (214) 272-3100


By:  Coleman Jackson, Attorney & CPA
March 12, 2021

What is a bid protest in Government Contract

What is a bid protest?

A bid protest is a challenge to the award or proposed award of a contract for the procurement of goods and services or a challenge to the terms of a solicitation for such a contract.

What kinds of bid protests can be filed at GAO?

Protests may be filed against procurement actions by federal government agencies.

What kinds of protests cannot be filed at GAO?

Protests may not be filed against procurement actions by non federal government agencies, such as state, local, or foreign governments, or actions by certain exempted federal agencies, such as the Postal Service. For more information, see Bid Protest Regulations (4 C.F.R. § 21.5) and Bid Protests at GAO: A Descriptive Guide.

Who can file a bid protest at GAO?

Only “interested parties” may file protests. In the case of a solicitation challenge, an interested party is generally a potential bidder for the contract. In the case of a contract award challenge, an interested party is generally an actual bidder that did not win the contract. In addition, other factors, such as the bidder’s standing in the competition and the nature of the issues raised may affect whether it qualifies as an interested party. For more information, see Bid Protest Regulations (4 C.F.R. § 21.0(a)) and Bid Protests at GAO: A Descriptive Guide.

When must a protest be filed?

In general, a protest challenging the terms of a solicitation must be filed before the time for receipt of initial proposals. A protest challenging the award of a contract must be filed within 10 days of when a protester knows or should have known of the basis of the protest (a special case applies where, under certain circumstances, the protester receives a required debriefing). Please be aware that the regulations regarding the timely filing of protests depend on all facts and circumstances of each case and are strictly enforced. For more information, see Protest Regulations (4 C.F.R. § 21.2) and Bid Protests at GAO: A Descriptive Guide.

How is time calculated for filing deadlines?

“Days,” under GAO’s regulations, means “calendar days.” In the event a deadline falls on a weekend, federal holiday, or other day when GAO is closed, the deadline is extended to the next business day. For more information, see Bid Protest Regulations (4 C.F.R. § 21.0(e)) and Bid Protests at GAO: A Descriptive Guide.

I was awarded a contract and was told that the award has been protested – what must I do, and what am I allowed to do?

Parties that have been awarded a contract are permitted to participate in a protest as an intervenor. They are not required to do so, however, as it is the agency’s responsibility to respond to the protest and defend the award of the contract.

Are employee unions or representatives allowed to file protests or participate as intervenors?

Government employees and their representatives may participate as protesters and intervenors in protests involving competitions conducted under Office of Management and Budget Circular A-76. For more information, see Bid Protest Regulations (4 C.F.R. § 21.0(a)(2), (button) (2)) and Bid Protests at GAO: A Descriptive Guide.

Do I need an attorney to file a protest or participate as an intervenor?

No. Parties may file a protest or participate as an intervenor without being represented by an attorney. However, only attorneys are permitted to have access to material subject to a protective order.  Bid protest rules, procedures and practices are governed by the rule of law(The Federal Acquisition Regulations (FAR) for federal contracts); therefore, an understanding of relevant statutes, regulations and case law would be extremely helpful for framing and presenting a credible bid protest.


Federal Bid Protest Jurisdiction and Filing Deadlines

 Federal Bid Protest Jurisdiction and Filing Deadlines:

This reference lays out the filing deadlines, jurisdictional requirements, stay rules, and appeal processes for each place a bid protest can be filed: the Government Accountability Office,the U.S. Court of Federal Claims, and the procuring agency.

The rules differ by type of procurement. Chart 1 lists the rules for protesting contracts awarded under FAR Parts 13, 14, and 15. Chart 2 lists the rules for protesting task and delivery orders issued under most IDIQ contracts. Chart 3 lists the special rules that apply to protests of task orders issued under the General Service Administration’s Federal Supply Schedule contracts.

GAO Procedures:

Over the years, GAO’s decisions on federal contract awards have created a uniform body of law applicable to the federal procurement process upon which the Congress, the courts, agencies, and the public all rely.

Automatic Stay?

For pre-award protests, the agency must suspend award of the contract once it receives notice from GAO that a protest has been filed. FAR 33.104(b).For post-award protests, the agency must suspend performance if it receives notice of the protest from GAO within 10 days after contract award or within 5 days after the debriefing date offered to the protester for requested and required debriefings under FAR 15.505 or 15.506, whichever is later.  FAR 33.104(c).  (Note: Debriefings are not “required” for procurements under FAR Part 13 (FAR 13.106-3(d)), or Part 14 (except 14.5 (two-step sealed bidding) FAR 14.503-1(g))).In DoD procurements, for debriefings requested and required under FAR 15.506(d), contracting officers must provide an opportunity for unsuccessful offer or to submit additional questions within 2 business days of receiving a debriefing. The agency then has 5 business days to respond in writing. See10 U.S.C. § 2305(b)(5). The 5-day filing period to trigger an automatic stay does not start until after the agency delivers the written responses. See31 U.S.C. § 3553(d)(4). 

 Jurisdictional Timelines

Jurisdictional Timelines:

  • A pre-award protest based on alleged improprieties in the RFP that are apparent prior to receipt of proposals must be filed prior to the time set for receipt of proposals. Improprieties subsequently incorporated into the solicitation must be protested by the next closing time for receipt of proposals following incorporation. See 4 C.F.R. § 21.2(a)(1). Where a basis for challenging the terms of a solicitation does not arise until after proposal submission, a protest is due 10 days after the basis of protest is known or should have been known. See 4 C.F.R. § 21.2(a).
  • An offer or excluded from the competitive range before award must request a debriefing in writing within 3 days after receipt of notice of exclusion to obtain a “required” debriefing. See FAR 15.505(a)(1). The offer or then must file its protest not later than 10 days after the date on which the debriefing is held. See 4 C.F.R. § 21.2(a)(2).
  • For competitions where a debriefing is requested and required, post-award protests must be filed not later than 10 days after the debriefing is held, but not before the offered debriefing date. See 4 C.F.R. § 21.2(a)(2), for DoD, 10 days run from when DoD answers timely “additional questions.”
  • For all other protests not covered above, the protester must file its protest within 10 days after the basis of protest is known or should have been known, whichever is earlier. See 4 C.F.R. § 21.2(a)(2).

Subject Matter Jurisdiction Limits:

  • Only an “interested party” may protest improprieties in an RFP or award or termination of a federal contract. See 4 C.F.R. § 21.1(a). An “interested party” is an actual or prospective offer or whose direct economic interest would be affected by the award of a contract or the failure to award a contract. See 4 C.F.R. § 21.0(a)(1).

Note: An alleged Procurement Integrity Act violation must be brought to the Agency’s attention within 14 days of discovery, or it cannot be raised in a GAO protest. See FAR 33.102(f); 41 U.S.C. § 2106. 

 Process for Appealing Unsuccessful Decision

Process for Appealing Unsuccessful Decision:

A Request for Reconsideration may be filed at GAO not later than 10 days after the basis for reconsideration is known or should have been known, whichever is earlier. See 4 C.F.R. § 21.14.

A protester may “appeal” a GAO decision to the Court of Federal Claims by filing suit alleging that the agency’s procurement was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law” in violation of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A). 28 U.S.C. § 1491. There is no strict timeline for filing such an “appeal.”

A contractor may also file suit in the Court of Federal Claims alleging that an Agency’s proposed or actual corrective action, even if recommended or approved by GAO, is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.


Readers interested in following our blogs on government contract law, such as, relevant federal, state and local public contract decisions should visit our website at www.cjacksonlaw.com where we post our most recent blogs.  Our blogs in government contracting covers relevant decisions issued by the GOA, case decisions issued by the Court of Federal Claims and various state court decisions on public contract law.  Readers can also subscribe to our taxation, government contract litigation and immigration law Legal Thoughts Podcast where ever they listen to their podcast.

This law blog is written by the Taxation | Litigation | Immigration Law Firm of Coleman Jackson, P.C. for educational purposes; it does not create an attorney-client relationship between this law firm and its reader.  You should consult with legal counsel in your geographical area with respect to any legal issues impacting you, your family or business.

Coleman Jackson, P.C. | Taxation, Litigation, Immigration Law Firm | English (214) 599-0431 | Spanish (214) 599-0432 | Portuguese (214) 272-3100


By:  Coleman Jackson, Attorney & Certified Public Accountant
March 06, 2021

NOTE:  This is merely and overview of government procurement contracts and just scratch the surface of this complex and intricate area of contract law.  This area of law is also known as Public Contract Law.OVERVIEW OF  GOVERNMENT PROCUREMENT CONTRACTS

General Concepts: Each year, the U.S. federal government and its various agencies procure more than $300 billion of everything in more than 4,000 categories, ranging from airplanes to zippers. For many products and services, the U.S. government is the biggest buyer on the planet.

In 2020, the federal government spent more than $6.5 trillion, that is, spending exceeded collections by about $3.3 trillion resulting in a deficit. If broken out in terms of minutes, it would mean that the government spent more than $9 million every minute. However, a more accurate realization is that Covid-19 impacted the 2020 budget; also, budgets and government spending is spread out throughout the year, and high spending periods will fluctuate between agencies and will be impacted by health factors and other unknowns. Typically speaking, one of the biggest spending periods is in the months of August and September, as government agencies that have extra funds available (through the allocation from Congress) need to spend the money or risk losing it. Any money not spent goes back to the U.S. Treasury. Note: The 2020 fiscal year ended on September 30, 2020, and the new fiscal year started on October 1, 2020.

Another important thing to consider is that the federal government is not just one buyer. It is a collection of tens of thousands of buyers that purchase everything from nuts and bolts, and paperclips, to aircraft carriers.

With so many needs – from the simple, to the complex, to the classified – government buyers will order things in bulk or small, one-offs. Other times buyers will say they know they need certain products or services, but they do not know how much, how often, or when their next order will come. This creates a unique feature within government contracting that is not present in the private sector resulting in the use of different contract types or contract vehicles to accomplish the governments requirement needs.

Contract vehicles are ways in which a government agency or department can buy what it needs. They all have different rules. Government agencies are often looking for contract vehicles that will get them what they need, as quickly as possible and at the best cost point as possible. One of the most commonly known to businesses is the General Services Administration (GSA) Schedule. The GSA Schedule is a listing of products and services with pricing. Government buyers use the GSA to buy a wide variety of things, and businesses work hard to get on the GSA Schedule to make sure their products and services are readily available at the fingertips of government buyers.


U.S. government contracts

U.S. government is also an attractive customer for a few other reasons:

  • The government makes its needs publicly known through such media as the Commerce Business Daily, a publication listing numerous public contracting opportunities. (You can find this publication at many large public libraries.) This is quite different from most markets, wheresuppliers have to thoroughly research to identify the purchasers needs.
  • Government sales are conducted in an open environment where there are many rules to ensure that the process is fair.
  • The government frequently buys in very large volumes and overlong periods of time. That kind of customer can provide a solid foundation for growing your company.
  • Laws set aside all or part of many contracts for women-owned businesses, small businesses, minority-owned businesses, and other firms the government identifies as disadvantaged historically and that the government desires to equalize, support and include in the economic growth of the country.

Having the U.S. government as a customer can give a business a stamp of approval. If you can meet the government’s standards for quality, price and service, odds are good you can meet other customers’ requirements as well.

But there are downsides to selling to the government. It can be hard to find the proper purchasing agent among the thousands employed by various branches and agencies of the federal government. In addition, the rules and paperwork are daunting. The good news is that there are many sources of help. The SBA’s website is one good place to start looking for help selling to the government. Agencies like the U.S. Postal Service, the Department of Interior and the Army, as well as many others, send out solicitations to businesses that are on their mailing lists. To find out how to get on the lists, contact the agency you’re interested in.

And don’t restrict yourself to selling to the federal government. State and local governmental entities, including cities, counties, school districts and others, actually purchase more goods and services than the federal government. There are more of them and they are smaller, but these government customers can provide alternative tracks to growth that are just as viable as the opportunities in Washington, DC.

You can sidestep many of the hassles of winning a government contract if you subcontract with the main or prime contractor. Prime contractors, ranging from large defense contractors to companies that may be smaller than yours, do most of the work to land the government job. Then they may hire you to fulfill all or part of it. Find prime contractors by perusing many of the same resources you would to sell directly to the government.  Many government contracts require small disadvantaged businesses based on race, gender, disabilities, veteran set-asides.

Definition: Agreements that outline business transactions between companies and government entities. Government contracting is the process where businesses provide products or services to federal, state, and local governmental agencies and entities.


An Overview of Government Contract Law

 An Overview of Government Contract Law:

The government of the United States buys more products and services than any other entity worldwide. The United States Department of Defense (DOD) makes up a large portion of the country’s purchases.

There are three main differences between government purchases and those of the private consumer:

  • Government contracts are highly regulated to ensure the most competition, guarantee proper use of government funds, and promote a healthy economy.
  • Government contracts include clauses, like the “changes” or “default” clauses, that allow the government to enact special rights within the contract like being able to change the terms of the contract or even end it.
  • Government contracts follow the procedures laid out in the Contract Disputes Act should there be any claims or legal action, because the government is a sovereign entity.

The Competition in Contracting Act and Federal Acquisition Streamlining Act are both important laws that regulate government contracts.

The Federal Acquisition Regulation (FAR) controls acquisitions made by the United States Executive Branch, and it is outlined in title 48 of chapter one in the Code of Federal Regulations parts 1 through 53.

Agencies like the DOD, NASA, and the General Services Administration (GSA) can create supplements to the Federal Acquisition Regulation. Those three specific agencies actually amended the FAR in pursuant to the Administrative Procedure Act.

The United States Government can only be contract-bound by an authorized contracting officer (or CO) who has been issued a warrant by the executive agency. These contract warrants (or certificates of appointment) can be held to a specific amount or allowed an unlimited amount of money.

A contract officer is authorized to grant, manage, or terminate a government contract.  CO’s play a pivoted and major role in government procurement law.

The Contract Disputes Act (CAS)govern legal issues regarding government procurement contract issues and disputes which must first be submitted to a contract officer for resolution.

Once the contract officer makes a decision regarding the legal claim, the complaining entity represented in the contract can appeal the decision with the United States Court of Federal Claims (CFC) or a board of contract appeals.  Note there must be privity of contract in government contract disputes.  Typically, subcontractors cannot file a complaint under CAS.

The claim can then move on to be appealed before the Court of Appeals of the United States for the Federal Circuit, and even eventually to the Supreme Court.

Any company that sells its products or services to other business entities or nonprofits could probably also sell to the government.

The United States Government can make a great customer or client because of the following:

  • Government needs are easy to see through publications like Commerce Business Daily.
  • Rules and regulations ensure fair trading practices.
  • Government purchases are usually large and long term, providing a reliable income for the business.
  • As I mentioned before, contracts are set aside for businesses owned by minorities and women, as well as small businesses.
  • Government business will give your company a good reputation as it means that your products or services meet high standards.

 An Overview of Some Difficulties of Government Contracting

 An Overview of Some Difficulties of Government Contracting:

Conducting business with the government can also be very difficult as it can be tough to find the right channels for marketing your company with so many employees throughout different branches. They also require certain standards in terms of bookkeeping, record keeping, cost accounting and overall compliance cost accounting standards and government accounting principles.

Moreover, government contracts are typically subject to review and exacting audit compliance procedures and examination.

Bottom line is government contracts are subject to detailed paperwork where government contractors must comply withdetailed regulations from the bid process through completion of the contract.  Invoices for payment must often be certified under the penalty of perjury. These requirements can also be a bit overwhelming as a business owner new to the government procurement procedures. Thankfully, there are lots of options for assistance.

If you’re interested in working with a particular federal government agency, like the Postal Service or the DOD, you can contact that particular agency and get your business on their mailing list.

The federal government isn’t the only option, state agencies and local entities, like school districts, also make great customers.

Smaller, non-federal agencies have more opportunities for trading and, even though they are smaller, they can offer just as much potential for growing your company as working with the federal government would.

  Overview of Some Benefits of Government Contracting

Overview of Some Benefits of Government Contracting

Government contracts are a tremendous financial opportunity for small businesses.

The U.S. government is the largest customer in the world. It buys all types of products and services — in both large and small quantities — and it’s required by law to consider buying from small businesses.

The government wants to buy from small businesses for several reasons, including:

  • To ensure that large businesses don’t “muscle out” small businesses
  • To gain access to the new ideas that small businesses provide
  • To support small businesses as engines of economic development and job creation
  • To offer opportunities to disadvantaged socio-economic groups

 How it all works:

The process of requesting proposals, evaluating bids, and awarding contracts should take place on a level playing field. The government should consider a bid from any qualified business.

Set-aside and sole-source contracts:

Federal agencies must publicly list their contract opportunities. Some of these contracts are set aside exclusively for small businesses and historically disadvantaged businesses based on race, gender, disabilities or other factors.

In some cases, these so-called set-aside contracts might consist of certain types of tasks on larger contracts. In others, entire contracts may be reserved for small businesses or historically disadvantaged businesses. When a contract is set-aside for one specific small business, it’s called a sole-source contract.


The Small Business Administration (SBA’s) role in Government Contracting 

 The Small Business Administration (SBA’s) role in Government Contracting:

The SBA works with federal agencies in order to award approximately 23 percent of prime government contract dollars to eligible small businesses. It also offers counseling and help to small business contractors.

The United States Government is the single largest procurer of goods and services in the world, and the Department of Defense (DOD) accounts for the lion’s share of federal acquisitions.  Three major characteristics distinguish Government acquisitions from private sector contracts.  First, Government contracts are subject to a myriad of statutes, regulations, and policies which encourage competition to the maximum extent practicable, ensure proper spending of taxpayer money, and advance socioeconomic goals.  Second, Government contracts contain mandatory clauses which afford the Government special contractual rights, including the right to unilaterally change contract terms and conditions or terminate the contract.  The most important clauses are the “Scope Clause, “Changes” clause, the “Termination for Convenience” clause, and the “Default” clause.  Third, due to the Government’s special status as a sovereign entity, claims and litigation follow the unique procedures of the Contract Disputes Act.   It is critical that Contractors; especially small businesses who are new in government procurement, to be fully knowledgeable of how the “Payment” clause works because long delays in payment could cause budgetary difficulties and performance issues to the naïve.

Government contracts are subject to several statutes, including the Competition in Contracting Act and the Federal Acquisition Streamlining Act.  In addition to statutes, there are a multitude of regulations which govern acquisitions by executive branch agencies.  Foremost among these is the Federal Acquisition Regulation (FAR), which is codified in Parts 1 through 53 of Title 48, Chapter 1 of the Code of Federal Regulations.  Executive branch agencies may issue their own regulatory supplements to the FAR, such as the Defense Federal Acquisition Regulation Supplement (DFARS).  The FAR is amended pursuant to the Administrative Procedure Act, with proposed changes issued jointly by the DOD, the General Services Administration (GSA), and the National Aeronautics and Space Administration (NASA), in coordination with the FAR Council.

Only Contracting Officers have the authority to contractually bind the United States Government.  This authority is vested in the executive agency, which then delegates this authority by issuing a certificate of appointment or “warrant.”  The warrant provides signature authority up to a specified amount of money, or it can be an unlimited warrant.  Contracting Officers have the authority to award, administer, and terminate Government contracts.

Overview of Government Contract Dispute Resolution”

Government contract claims are subject to the Contract Disputes Act, which requires the claim to be presented first to the Contracting Officer (“CO”).  After the Contracting Officer’s Final Decision or deemed denial, the claim may be appealed to either the United States Court of Federal Claims (CFC) or to the appropriate Board of Contract Appeals.  The forum to file the law suit challenging the CO’s decision is chosen by the contractor. Note that the contractor does not have file suit within the administrative process; but the Board Judges are government procurement experts who deal exclusively with government procurement contract disputes; whereas, the Judges on the Court of Federal Claims may not have government procurement experience and may handle all kinds of complaints filed against the federal government.   Resolution of federal procurement disputes by the Board process could likely be quicker as well. Numerous issues are involved in the contractor’s decision of which forum to choose to litigate their CAS claim.  Whether CAS litigation occur in the Court of Federal Claims or in one of the Boards of Appeal, after trial on the merits in either venue, the tribunal decision may be appealed to the United States Court of Appeals for the Federal Circuit, and finally to the Supreme Court.  It is very important to note that the Court of Federal Claims has the exclusive authority to hear bid protests, which are challenges to an award, proposed award, or terms of a solicitation of a federal contract.  The Boards do not have any authority to hear bid protest or any other none-CAS matters.

What are Some of the Different Types of Government Procurement Contracts

What are Some of the Different Types of Government Procurement Contracts?

Government contracts generally fall under a few different categories, each of which involves different requirements and varying risk to the contractor.  Understanding the type of government contract, you’re competing for can help give you a better sense of what to expect, the risk involved and how to put together and negotiate a more compelling and competitive proposal. To give a brief overview, we’ve laid out the top four most common types of government procurement contracts and what they entail below:

1. Fixed-Price Contracts

Fixed-price contracts are just that — they ask contractors to submit a bid to complete a project under a predetermined price (and often within the bounds of a target price). They are not subject to any type of adjustment unless certain provisions (such as changes in the contract, pricing, or defective pricing) are included in the original agreement. Contract price can sometimes be renegotiated through different contract clauses (depending on the variety of fixed-price contract in question), but these bids will be low-risk if the government and contractor carefully communicate on a reasonable price. The risk inherent to fixed-price contracts will increase if deliverables, standards and other measures are unclear or if the contractor must execute custom development with a yet-to-be completed solution. All federal agencies use fixed-price contracts and they’re the most common type of contract requested at a state and local level.

In Fixed-Price contracts, the contractor is paid a set fee for their goods or services, regardless of incurred costs. Accurately planning and forecasting your expenditure (in terms of time, available personnel, expertise and capital) is absolutely vital to ensuring that you see a positive return on your investment once you’ve won a bid. While some degree of risk may be present, these contracts provide great profit opportunities for successful contracts that are well executed.  These contracts can also be dangerous for the naïve or businesses who are new or unfamiliar with government procurement contract procedures, policies, regulations and so forth.  Silent clauses and provisions could be applicable to the contract.

2. Cost-Reimbursement and Cost-Plus Contracts

These types of contracts allow a contractor to seek reimbursement for incurred costs up to a prescribed allowance. Usually, costs will be estimated upfront to establish a ceiling that a contractor cannot exceed without first gaining approval. As long as incurred costs do not exceed the stipulated maximum, then a contractor can seek reimbursement for any justified expenses as they fulfill the contract.

This kind of contracts are typically used when there are uncertainties or contingencies involved in a proposal that cannot be estimated upfront with complete accuracy. Examples of agencies that use these types of government contracts include the Federal Transit Administration, National Weather Services and US Department of Defense.

Cost-plus contracts are often more concerned with the final quality of a project rather than cost (an example of this type of project would be ones executed in support of United States space and satellite programs). Because there is less built-in incentive to be efficient, these types of contracts usually require closer oversight to ensure maximum efficiency and thrift. The contract itself can be supplemented with additional award or incentive fees to help encourage efficiency, but designing and implementing these programs also requires additional contract administration. While these contracts are often lower risk than Fixed-Price contracts, the profit margins may also be lower and bidding requires that you offer competitive pricing (i.e. low rates) in order to win.  Contractors must be very careful when bidding on cost-reimbursement and cost-plus contracts because the potential to bid too low can be damaging.  This is particularly a danger that the naïve or unsophisticated small business could face.

3. Time-and-Materials Contracts (T&M)

Time-and-materials contracts are a cross between fixed-price and cost-reimbursement contracts and often require the government to shoulder more risk than the contractor (making them a less popular option for government agencies). Like cost-reimbursement and cost-plus contracts, T&M contracts are only used when it’s not possible to nail down an accurate cost or timeline estimate for a project at the time when a proposal is submitted. The government is basically paying for your services by the hour, including your fees and profit, so competitive pricing is key to winning and net profits are often (but not always) lower.

4. Indefinite Delivery/Indefinite Quantity (IDIQ) Contracts

IDIQ contracts are often used to supplement or amend fixed-price or cost-reimbursement contracts in order to provide flexibility with regard to specific supplies, services or aspects of a project required by the government. In contrast to other contract types, IDIQs allow the government contracting agency to “down select” multiple entities that will compete for future break-out contracts (often called “task orders”) under the umbrella of the main contract. This results in the contracting agency receiving bids from the pool of awardees for each follow-up task order, which theoretically provides them with the best possible value, flexibility and service. It also streamlines the process for issuing, awarding and executing task orders in the event of a national emergency.

The umbrella, or main contract, usually runs for a period of five to ten years, during which time the individual task orders are announced on an as-needed basis. Typical response times required for down selected entities range from a few days to a month or more, depending on the urgency of the requirement. In extreme cases, the government can ask for a response on the very same day a task order is issued. These responses are purely pricing requests for vendor equipment to aid first responders in a natural or man-made disaster, such as supplying temporary lighting and generators.

IDIQs often specify that a contractor supply a minimum quantity of suppliers and services and agree to a fixed timeline and maximum price ceiling for the contract tasks. They also ask contractors to identify a few different consultants and suppliers that they might leverage for a task and submit these names as part of the initial bid. This can help the government streamline the contracting process by limiting their decision process to a few pre-approved options for each task.

Awards are given out in base year period intervals for each task order (usually 1 to 5 years) and are eligible for renewal after the base period concludes. At the time of renewal, each task order can be “re-competed” for by the incumbent contractor and those previously down selected under the umbrella contract. For contract renewals, responding to specific task orders is not required.

This has been a general overview of government procurement procedures, practices and legal principles.  This is a complicated area of law and this brief presentation does not attempt to cover the breath of this legal area in any respect. Public Contract Law

This law blog is written by the Taxation | Litigation | Immigration Law Firm of Coleman Jackson, P.C. for educational purposes; it does not create an attorney-client relationship between this law firm and its reader.  You should consult with legal counsel in your geographical area with respect to any legal issues impacting you, your family or business.

Coleman Jackson, P.C. | Taxation, Litigation, Immigration Law Firm | English (214) 599-0431 | Spanish (214) 599-0432 | Portuguese (214) 272-3100

Government Contracts are Different from Contracts between Ordinary Parties

By:  Coleman Jackson, Attorney, CPA
March 10, 2016

Government Contracts are Different from Contracts between Ordinary Parties

Contracting with the United States Government is different from contracting with an ordinary party.  Government Contracts differ from normal contracts in a number of ways.  The U.S. government has the exclusive right to decide who the government will do business with.  In government procurement law, the term ‘government contract’ is defined as any agreement or modification thereof between any entity, individual or person and the U.S. Government for the purpose of providing goods or services.  This definition of government contracts covers parties contracting directly with the government and those supplying goods and services indirectly to the government; such as, subcontractors and sub-sub contractors.  Government contracts do not have to be in writing to be enforceable.

Most importantly, the terms and conditions applicable to a government contract do not have to be agreed to by the parties

Most importantly, the terms and conditions applicable to a government contract do not have to be agreed to by the parties.  In fact the contracting party may not even be aware of all the regulations, executive orders and government policies and rules that are applicable to their government contracts.   For example, Executive Order No. 11246, Sec. 202(1) mandates that every nonexempt government contract contain a clause under which the employer agrees not to discriminate in employment on the basis of race, color, religion, sex or national origin.  All nonexempt government contractors must comply with this Executive Order and others that require government contractors to affirmatively put in place policies and procedures to comply with affirmative action employment policies, maintain suitable compliance records, and make them available for audit and inspection by U.S. Department of Labor investigators.  The very first Executive Order concerning equal protection of all U.S. citizens in government procurement was enacted by President Franklin D. Roosevelt.  President Roosevelt prohibited discrimination by government contractors and all Presidents since him have followed his example with respect to government procurement.

Affirmative Action and equal employment policies in government procurement are only one example of how the government achieves social and economic national policies through the U.S. government’s procurement of goods and services.  The President and governmental agencies run the government by enacting executive orders and writing and enforcing regulations.  In 1952, the U.S. Supreme Court ruled that President Truman’s executive order seizing the steel mills were unlawful.  The basic rule established by the Court in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153 (1952) is simple, if the executive acts pursuant to congressional authority, the executive action is lawful; and if the executive acts against congressional authority, as President Truman did in seizing the steel mills, the executive action is unlawful.  In Youngtown, Congress had expressly refused to authorize seizure of the steel mills.  The actual implementation of this rule can be extremely nuanced and complicated as to determining whether an executive order or administrative regulation is -with or without- congressional authority.

Contracting with the U.S. Government is different from contracting with ordinary parties.  Compliance with applicable governmental policies, rules and regulations are extremely important.  Ignorance of government regulations and executive orders can destroy your business because executive orders and regulations apply to government contracts even if the actual contract never mentions them.  Agency regulations and Executive Orders have the full force and effect of law if they do not conflict with an express Congressional statute.  Maryland Cas. Co. v. United States, 251 U.S. 342, 349 (1920).

 Government Contractor’s ignorance of the law is no valid excuse. 

You can follow our blog post by visiting our Taxation, Litigation & Immigration Law Firm’s Website at www.cjacksonlaw.com.

This government contracting law blog is written by the Taxation | Litigation | Immigration Law Firm of Coleman Jackson, P.C. for educational purposes; it does not create an attorney-client relationship between this law firm and its reader.  You should consult with legal counsel with respect to any specific contract issues impacting you, your family or business.

Coleman Jackson, P.C. | Taxation, Litigation, Immigration Law Firm | English (214) 599-0431 | Spanish (214) 599-0432 


By: Coleman Jackson, Attorney
August 27, 2015


Texas Government Code §2264.051 stipulates that vendors doing business with any public agency, state or local taxing jurisdiction, or economic development corporation in Texas must certify in writing that the business, or a branch, division, or department of the business, does not and will not knowingly employ an undocumented worker.

The certification statement must also stipulate that if, after receiving a public subsidy, the business or a branch, division, or department of the business, is convicted of a violation under the Immigration and Nationality Laws of the United States, 8 U.S.C.A.  §1324a(f), the business will repay the amount of the public subsidy with interest, at the rate and according to the other terms provided by an agreement under Texas Government Code § 2264.053, not later than the 120th day after the date the public agency, state or local taxing jurisdiction, or economic development corporation notifies the business of the violation.  INA, 8 U.S.C.A. §1324a essentially deals with persons or entities that violate the U.S. immigration laws by hiring, or recruiting or referring for a fee for employment in the United States an undocumented person.  A person or entity charged with violations of 8 U.S. C.A. §1324a may establish that it has compiled in good faith with the requirements with respect to the hiring, recruiting, or referral for employment of an alien (illegal alien is the term used in the INA to refer to an undocumented person or a person who came to the U.S.A. without inspection or overstayed their visa) in the United States.  Anyway, If a person or entity charged with a violation under 8 U.S.C.A. §1324a, establishes an affirmative defense, a conviction could possibly be avoided, and the person or entity doing business with a Texas public agency, state or local taxing jurisdiction, or economic development corporation could probably avoid the penalty of repaying Texas all public subsidies received with interest under Tex. Gov’t Code §§2264.051-2264.101.

A public agency, local taxing jurisdiction, or economic development corporation, or the attorney general on behalf of the state or the state agency, may bring a civil action to recover any amount owed to the public agency, state or local taxing jurisdiction, or economic development corporation against any person or entity convicted of 8 U.S.C.A.  §1324a violations pursuant to Texas Government Code Section 2264.101.

Specifics regarding your company, workers, or government contracts should be discussed with legal counsel of your choice.  This overview is supplied for educational purposes, is only an overview, and do not create an attorney-client relationship with the Immigration & Tax Law Firm of:

6060 North Central Expressway
Suite 443
Dallas, Texas 75206
Phone:  (214) 599-0431 English
Phone:  (214) 599-0432 Spanish
Website:  www.cjacksonlaw.com