Government Contracts Monitor

Short Take: GSA Clarifies Jurisdiction Over Fair Opportunity Complaints Under GSA Multiple-Award Contracts

January 30, 2017

The General Services Administration (GSA) recently issued a Final Rule, effective January 9, 2017, amending the General Services Administration Acquisition Regulation (GSAR) to clarify that the Ordering Agency Task and Delivery Order Ombudsman has jurisdiction and responsibility to review and resolve “fair opportunity” complaints on task and delivery orders placed against GSA multiple-award contracts. The Final Rule requires that (1) the Ordering Agency include contact information for the Ordering Agency’s Task and Delivery Order Ombudsman when placing task and delivery orders against GSA multiple award contracts, and (2) companies filing a fair opportunity complaint to an Ordering Agency other than GSA must simultaneously provide a copy of the complaint to the GSA Procurement Ombudsman for informational purposes, so that GSA can maintain insight into fair opportunity complaints that arise on orders other agencies place against GSA contracts.

By way of background, FAR 16.505(b)(1)(i) provides that the task or delivery order contracting officer must afford each awardee under a multiple-award contract a “fair opportunity” to be considered for each order exceeding $3,000, except as provided in subsection (b)(2). The required procedures depend upon and escalate with the value of the specific task or delivery order. Per FAR 16.505(b)(8), the head of each agency is required to designated a senior agency official, who is independent of the contracting officer and may be the agency’s competition advocate, as the Task-Order and Delivery-Order Ombudsman. Such Ombudsman must review contractor complaints and ensure that all contractors are afforded a fair opportunity to be considered, consistent with the applicable contract procedures.

The Final Rule adds a new GSAR clause, 552.216-78, “Ordering Agency Task-Order and Delivery-Order Ombudsman,” which is required to be inserted in all GSA-awarded contracts available for multiple agency use (i.e., Government-Wide Acquisition Contracts (GWACs), Multi-Agency Contracts). See GSAR 516.506(d). This new clause requires that (a) the Ordering Agency notify all contractors as to the contact info for the Ordering Agency’s Ombudsman, and (b) contractors submitting a complaint provide a copy to GSA’s Ombudsman. Where GSA is the only ordering activity, or for GSA Orders placed against a GSA multiple-award contract, the contracting officer is required to include GSAR Clause 552.216-74, which has been revised to include contact info for GSA’s Ombudsman.

GSA determined that this Final Rule is not a major rule under 5 U.S.C. § 804, and merely clarifies internal Government operating procedures and brings GSAR policy up-to-date with FAR policy. Thus, no notice and comment was required, and the Final Rule became effective upon issuance on January 9, 2017.