Ch.13 – Other Avenues

Some other protest-like processes exist, but they do not fit neatly into the previous chapters.

The USPS Disagreement Resolution Process

The U.S. Postal Service offers a two-stage process for addressing protests.  39 CFR. 601.107 and 601.108.  The first stage, called “initial disagreement resolution,” lasts for ten days after a timely protest is lodged with the responsible contracting officer.  Id. at 601.107.  The contracting officer has ten days thereafter to issue a written “resolution,” i.e., a decision. During this phase, ADR may be used and the contracting officer’s ten-day deadline is suspended.  Id. at 601.107(c).  As described in the U.S. Postal Service’s  Supplying Principles and Practices (July 1, 2014), at 7-4.2, ADR usually takes the form of mediation or negotiation, but arbitration can be used if approved by the Vice-President for Supply Management.

ADR is not stated as an option for the second phase of the protest process described in 39 CFR 601.108.

Task and Delivery Order Ombudsman for FAR Contracts

Part of the Federal Acquisition Streamlining Act (FASA) addresses controversies relating to the award of task and delivery orders when several contracts have been awarded.  In these controversies, contractors with indefinite delivery contracts compete against each other for award of the work embodied in a proposed order to be issued under one of the indefinite delivery contracts.  FASA limits the jurisdiction of the U.S. Court of Federal Claims over all protests “in connection with the issuance or proposed issuance” of such orders unless the protest alleges increases to the scope, period, or maximum value of a master contract.  10 USC 2304c(e); 41 USC 4106(f).  The GAO has exclusive jurisdiction over other protests of task and delivery orders valued in excess of $10 million, but orders below that amount cannot be protested unless the protest alleges increases to the scope, period, or maximum value of the master contract.  10 USC 2304c(e); 41 USC 4106(f).

While Congress limited protest jurisdiction over task orders, it also mandated that agencies with such multiple award contracts provide a “Task and Delivery Order Ombudsman.”  10 U.S.C. § 2304c(f); 41 U.S.C. § 4106(g).  The role of the ombudsman is to ensure that the contract holders have a “fair opportunity” to compete for orders.  10 USC 2304c(f); 41 USC 4106(g); see also FAR 16.505.  The ombudsman is to be a “senior agency official who is independent of the contracting officer for the contracts and may be the executive agency’s advocate for competition.”  10 USC 2304c(f); 41 USC 4106(g).

Procedures for contacting the ombudsman will most likely be stated in the ordering procedures specified in the master contract.  Frequently these are “special clauses.”  The procedures will vary from agency-to-agency, and maybe program-to-program.  Similarly, the authority or influence of the ombudsman can vary widely.  For an example of an agency-specific clause, see NASA’s version.

Small Business Administration (SBA) Office of Hearings and Appeals (OHA)

The SBA OHA handles size protests and other procurement related matters for the SBA.  Since 2010, the SBA OHA has offered use of ADR for all matters within its jurisdiction:

Sec. 134.216 — Alternative dispute resolution procedures

(a) At any time during the pendency of a case, the parties may submit a joint motion requesting that the Judge permit the use of alternative dispute resolution procedures to assist in resolving the matter.  If the motion is granted, the Judge will also stay the proceedings before OHA, in whole or in part, as he or she deems appropriate, pending the outcome of the alternative dispute resolution procedures.

(b) A Judge may offer alternative dispute resolution procedures to the parties at any time during the proceeding.

(c) The AA/OHA [Assistant Administrator for OHA] or a Judge may designate a Judge or attorney assigned to OHA to serve as a neutral in alternative dispute resolution procedures.  If OHA provides the neutral and the mediation fails to resolve all issues in the case, the OHA-provided neutral will not be involved in the adjudication.

13 C.F.R. 134.216 [61 FR 2683, Jan. 29, 1996, as amended at 75 FR 47441, Aug. 6, 2010].


Subpages (1): NASA IDIQ Ombuds