Opinion: Federal Circuit Clarifies Meaning of “Full and Open,” – reverses court decision related to CMS MAC Program

“Last month, in National Government Services, Inc. (“NGS”) v. United States—a pre-award bid protest handled by Crowell & Moring—the Federal Circuit ruled that “workload caps” imposed by the Centers for Medicare & Medicaid Services (“CMS”) in its administration of the Medicare Program violated the Competition in Contracting Act’s (“CICA”) “full-and-open competition” requirement. In so doing, the Federal Circuit reversed a Court of Federal Claims (“COFC”) decision that upheld the caps (a prior GAO decision had done the same), clarified the meaning of “full and open,” and clarified the scope of agency authority pursuant to the Federal Acquisition Regulation (“FAR”) to address concerns about competitive balance in the marketplace…”

“In 2010, pursuant to its authority to administer the MAC program, CMS implemented the workload caps at issue. Pursuant to the caps, an individual MAC contractor could not hold more than 26% of the national Medicare workload. CMS identified two overarching concerns animating the caps: (1) business continuity issues for the Medicare program should a single entity holding too much of the workload suffer a “disaster event” such that it was unable to continue performance; and (2) the need to maintain a dynamic, competitive marketplace of available MAC contractors…”

“In reversing the COFC’s decision, the Federal Circuit considered two questions. First, did CMS’ workload caps violate CICA and the FAR’s full-and-open competition requirements? Second, if yes, was CMS nonetheless authorized to implement them?…”

“While agencies have are afforded substantial discretion to administer their procurements in the manner they best see fit, the Federal Circuit’s decision in NGS is a reminder that such discretion is not unfettered. Absent express authorities stating otherwise, bidders are entitled to full and open competition in federal procurements, subject only to the constraints specifically delineated in CICA and the FAR.” Read the full article here.

Source: Federal Circuit Clarifies Meaning of “Full and Open,” Limits on Government Ability to Manipulate the Competitive Marketplace, and Contours of FAR Part 6 – By Anuj Vohra, Monica DiFonzo Sterling, June 19, 2019. Crowell Moring.

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