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Practitioners can use the framework in combination with the FGCAA definitions and OMB administrative guidance to choose a procurement contract or an assistance instrument.
Much of the ambiguity following the FGCAA and OMB guidance originates from the earlier Comptroller General opinions and court decisions that found overlap between procurement and assistance that created confusion among practitioners.
(49) The GAO then held that the direct benefit language used in the FGCAA is not necessarily the final question.
(66) This ambiguity and confusion stems in part from the use of the term contract in the Tucker Act (67) and the term procurement contract in the FGCAA. (68),
(72) These terms originate from the FGCAA and the OMB guidance explained in section III.
Hymas filed a bid protest in the COFC alleging violations of the CICA and the FGCAA. (110) The COFC held that the FWS violated the CICA by not obtaining full and open competition, and that the priority selection system used by the FWS violated the FGCAA.
public or private agencies and organizations in the development, protection, rearing, and stocking of all species of wildlife resources thereof, and their habitat.'" (113) The CAFC then held that the FWS "properly construed [CFAs] as cooperative agreements." (114) In coming to this second holding, the CAFC first relied upon the definitions of when an agency shall use a procurement contract and when an agency shall use a cooperative agreement as outlined in the FGCAA. (115) Next, the court referenced the OMB guidance on the FGCAA, namely, that determinations on whether a program is one of procurement or assistance is a policy decision, and that the FGCAA gives flexibility to agencies in transaction instrument selection.
Finally, the CAFC again touched upon agency discretion and flexibility in its analysis, stating that the congressional intent in the FGCAA was agency flexibility in transaction instrument selection.
However, Hymas and CMS, in combination with the FGCAA, OMB administrative guidance, and prior GAO opinions, provide a framework for analyzing whether to use procurement or assistance.
In conclusion, in analyzing the decision between procurement versus assistance, practitioners should understand that the agency has discretion and flexibility, limited by the definitions in the FGCAA, the affirmative authorizing legislation, the principal federal purpose of the transaction, the primary beneficiary of the transaction, and the thing of value being transferred.
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