III. Background

CICA requires agencies to use competitive procedures and obtain full and open competition when procuring products and services unless an exemption applies². CICA allows agencies to depart from full and open competition only in certain prescribed circumstances³. As mentioned above, CICA defines a “competitive procedure” as entering into a contract pursuant to full and open competition. This term also includes procedures established by the Administrator of the General Services for the multiple award schedule program⁴.

For many years, agencies acquired open market items under a purchase order contract if they were deemed to be “incidental” to the overall acquisition. Apparently, these items were procured along with the Schedule items in order to fulfill a particular agency requirement from one source without having to engage in two or more acquisitions to fulfill the requirement. Evidently, agencies ignored the obligations set forth in CICA.

In fact, this acquisition methodology was approved by the Comptroller General in ViON Corp., B-275063.25, in which the Comptroller General authorized agencies to procure Federal Supply Schedule (“FSS”) items and “incidental” non-FSS items provided that the non-FSS (“open market”) items meet the needs of the ordering agency and offer the lowest aggregate

price, and if the cost of the non-FSS items is small compared to the total cost of the procurement⁵. The Comptroller General approved the acquisition of non-Schedule items in a purchase order contract issued under a GSA Schedule if they satisfy the agency requirements and are an insignificant portion of the total requirement⁶.

IV. Enforcement of CICA

The United States Court of Federal Claims (the “Court” or the COFC) filed their opinion, number 97-382C, on June 27, 1997 in the matter of ATA Defense Industries, Inc. (ATA) v United States. ATA sought an injunction ordering the United States Army to suspend performance of and to terminate a purchase order contract issued to Caswell International, Inc. (Caswell) under the Caswell GSA Schedule. The total dollar value of the contract was $673,376, of which 65% of the products ordered were included in the awardee's GSA Schedule, and the remaining 35% were non-FSS open market items. The Contracting Officer had justified the sole-source award of the non-FSS Items to Caswell by stating they were the only responsible source⁷. The Army amended the justification only after ATA filed its suit and claimed that its needs were unusual and compelling urgency⁸. The Court rejected both justifications. The Court stated that “It is fundamentally inconsistent with...

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