As a result of novel Coronavirus (SARS-CoV-2) and COVID-19, federal and state governments have a sudden and unanticipated need for more goods and services. Some of those goods and services are highly specialized and specific to Coronavirus and COVID-19. But governments also have an increased and urgent need to buy otherwise-routine goods and services that have become newly critical in the wake of COVID-19.
All of this means that there are and will be procurements where speed is the priority, and where there is no time for the normal pace and cadence of the procurement process and contract formation. It also means that resources necessarily will get taken away from routine procurement tasks and reallocated to urgent matters.
Here are a few things to watch for:
- Careful review of draft contracts will be even more important than usual. In critical areas, agencies will be working to push out contracts as quickly as possible, increasing the likelihood of mistakes and errors. Further, in some instances, agencies will be looking to insert provisions that will benefit or protect the government but may not be appropriate under the circumstances. Contractors should carefully review all clauses included by the government — and especially the tailored clauses that often appear in Section H. Contractors should also make sure they understand whether the government is seeking to issue the contract as a rated order under the Defense Production Act.
- Agencies may make greater use of sole-source procurements and procurements other than full and open competition. When time is of the essence and the stakes are high, the government may decide to use other than full and open competition. It has a number of mechanisms to do that. For example, FAR 6.302-2, “Unusual and Compelling Urgency,” permits the government to skip full and open competition “[w]hen the agency’s need for the supplies or services is of such an unusual and compelling urgency that the Government would be seriously injured unless the agency is permitted to limit the number of sources from which it solicits bids or proposals[.]” And FAR 6.302-7, “Public Interest,” permits the government to skip full and open competition when “it is not in the public interest in the particular acquisition concerned” (although the determination must be made at the very highest level of the procuring agency — e.g., Secretary of Defense).
- Agencies may override CICA stays more frequently. Agencies may override the automatic stay of performance in GAO bid protests in two circumstances: (1) if “[c]ontract performance will be in the best interests of the United States”; or (2) if “[u]rgent and compelling circumstances that significantly affect the interests of the United States will not permit waiting for the GAO’s decision.” FAR 33.104(c)(2). Stay overrides ordinarily are infrequent, but may become more common in procurements related to COVID-19. Likewise, in protests at the Court of Federal Claims, judges may be less willing to grant preliminary injunctions — and DOJ may be less willing to agree to voluntary stays — for procurements related to COVID-19.
- Procurements unrelated to COVID-19 also will be affected. Many agencies have had to redirect resources to address urgent needs related to COVID-19. As a result, routine operations — including routine procurement functions — may be interrupted. Award decisions, debriefings, and contract execution may be delayed — or streamlined — for procurements that are not viewed as necessary for the fight against and response to COVID-19.
These are fast-moving times. We will continue to monitor these and other issues, and provide updates as they develop.