I recently authored an article for Law360 discussing a May 2022 ruling in the U.S. Court of Federal Claims (COFC) and how it has curtailed federal agencies’ authority to cancel government contract solicitations.
“Generally, government agencies are given broad discretion to define their needs, and the intricacies of their decision-making processes are shrouded in secrecy,” I explained in the article. “Only when an agency decisions lack a rational basis, or deviates from regulations or procedures, are their actions considered unlawful. Further, when courts review alleged violations, they employ a highly deferential rational basis review, benefiting the contracting officer’s judgment.”
In the article and the June 6 blog post about the decision, I provided insight on the arguments and ruling in Seventh Dimension LLC v. U.S., which ultimately called into question how this agency defined their needs when making contract decisions.
The decision comes at a time when government contracting communities and the Department of Defense (DOD) are increasingly interested in pulling back the curtain on the procurement process. In March, the DOD issued a final rule allowing for an enhanced post-award debriefing process intended to bring greater transparency to the award process. The change will bring more facts to bear following a contract award, acting as a deterrent to favoritism or prejudice in decision making and encouraging fairer competition.
“With the court’s decision in Seventh Dimension, and the final enhanced debriefing rule now in place, the deferential authority of agencies to determine their needs without divulging specific aspects of their procurement processes may be eroding in favor of heightened competition and transparency,” I explained. “These actions have curtailed some of an agency’s discretion by holding contracting officers to a strict interpretation of the operative regulatory language, diluting their discretion when it lacks factual support and shining a greater light on an agency’s decision-making process.”
The full article, “COFC’s Army Contract Ruling May Curtail Agency Discretion,” was published August 4 by Law360 and is available online.