AMS-Based Contracting

In 1996, the Department of Transportation’s Federal Aviation Administration (FAA) began using the Acquisition Management System (AMS) rather than the FAR.  The AMS has its statutory roots in 49 USC 40110(d), which expressly exempts the FAA from the Competition in Contracting Act, the Small Business Act, the FAR, and related statutes.  Id. at 40110(d)(2).  Particularly important to this guide is the statutory requirement that the AMS must provide for “the resolution of bid protests and contract disputes . . . using consensual alternative dispute resolution techniques to the maximum extent practicable.”  Id. at 40110(d)(1)(B).

Significant differences between the FAR and the AMS include:

• The AMS is a policy that governs the internal administration of the FAA rather than a regulation.
• The AMS relies heavily on the proper exercise of discretion by contracting personnel.
• The AMS provides for essentially two methods of competitive procurement, i.e., “complex and noncommercial source selection,” and “commercial and simplified source selection.”  See AMS Policy 3.2.2.3 and 3.2.2.5, respectively.
• Protests, disputes, and size challenges are under the jurisdiction of the Office of Dispute Resolution for Acquisition (ODRA) rather than the GAO, a board of contract appeals, or the Small Business Administration.

There are also similarities between the AMS and the FAR.  For example, many clauses in AMS contracts are very similar to FAR clauses.  When the underlying AMS policies or clauses are similar to corresponding FAR requirements, the FAA ODRA will consider the decisions of other forums as persuasive, but not binding.