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Protest after Award - Continued Performance
By Anonymous on Friday, November 16, 2001 - 09:01 am:

Would substantial cost savings to the Government be sufficient justification under FAR 33.104(c)(2)(i) [contract performance will be in the best interests of the United States] to override the stay on performance?


By Anon1 on Friday, November 16, 2001 - 10:26 am:

I have tried searching protest decisions and even the ASBCA (just not sure which court would handle this, assuming a contractor is disputing the CO's decision not to stay). I can't find anything, but I'll keep looking. Can you provide any further info. that might help, like what kind of cost savings.


By Anonymous on Friday, November 16, 2001 - 10:44 am:

There is a price difference of over 200% from what is currently being paid. The case law appears to give the government broad discretion under the best interests standard. Some courts have found the an Agency's determination to be nonreviewable. But, I cannot locate a single case were the decision to lift the stay was based solely on cost.


By anonymous8 on Saturday, November 17, 2001 - 11:57 am:

In my experience, no. Only things that would be considered legit relate to requirement for continuity of operations (and back-up that there is no other, albeit more expensive method of providing interim support.


By formerfed on Monday, November 19, 2001 - 09:02 am:

Costs by itself appears to me as rather weak. A 200% difference raises some questions such as why is it so much lower? Did the winner provide something significantly different from the solicitation requirements to get that low and perhaps there's validity to the protest? The problem is that losing the protest can result in TfC of the contract. Termination and settlement costs can be substantial. Also your agency lived with the incumbents cost for some time. Is paying for three months or so going to be hurt that much? Just some thoughts.


By Vern Edwards on Monday, November 19, 2001 - 09:43 am:

There is almost no case law about overriding a CICA stay based on the best interests of the government standard, 31 U.S.C. 3553(d)(3)(C), FAR 33.104(c)(2)(i). The GAO has no power to review an agency decision in this regard and according to Nash, Cibinic, and O'Brien, Comptetitive Negotiation: The Source Selection Process (1999), p. 827, some Federal courts have held that such a decision is not subject to judicial review, and that if a court does review such a decision it is likely to give the agency "substantial deference."

I'd say that if you can document convincingly that delaying award or performance will substantially increase the costs to the government then you can override the CICA stay. However, I suspect that most heads of contracting activities will be reluctant to use override a CICA stay on the basis of increased costs unless the costs are very substantial, since every protest and delay increases costs to some extent. 

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