28 Pub. Cont. L.J. 69 (1998-1999)
Scanwell Plus: Challenging the Propriety of a Federal Agency's Decision to Use a Federal Grant and Cooperative Agreement

handle is hein.journals/pubclj28 and id is 79 raw text is: Scanwell Plus: Challenging the
Propriety of a Federal Agency's
Decision to Use a Federal Grant
and Cooperative Agreement
KURT M. RYLANDER
I. Introduction                                               69
II. Procurement Contracts versus Domestic Assistance
Vehicles-Purposes and Differences                           72
III. Scanwell Standing Applied to Domestic Assistance Vehicles  74
A. A Primer on Scanwell Standing                            74
B. Federal Court's Use of Scanwell in Challenges of Agency
Decisions to Use Assistance Vehicles                    76
1. The Court of Appeals for the Third Circuit's Chem
Service Opinion Applies the Competition in
Contracting Act                                       77
2. The District Court for the District of Columbia's
TMC Technologies Determines that a Prospective
Subcontractor Has Standing                            78
IV. Creating a Standard of Judicial Review of an Agency
Decision to Award a Grant or Cooperative Agreement          79
A. Administrative Procedure Act Review                      79
B. Courts Applying Administrative Procedure Act Review
Should Apply a Two-Step Test                            81
1. Step One: Determining the Principal Purpose of the
Transaction: Does It Help the Agency Meet Its
Charter or Legal Duties?                              81
2. Step Two: Determining Whether a Transaction Is
Consistent with Any Specific Statutory Authorization  84
V. Conclusion                                                  87
1. Introduction
Federal agencies issue grants and cooperative agreements to provide do-
mestic assistance to geographic, scientific, or economic venues of our nation.I
Kurt Rylander practices federal contract law and litigation in Washington, D.C., and Seattle,
Washington.
1. See generally U.S. GENERAL SERVICES ADMINISTRATION, CATALOG OF FEDERAL
DOMESTIC ASSISTANCE III-IV (30th ed. 1996) (detailing 1324 assistance programs adminis-
tered by fifty-three federal agencies concerning assistance in the broad categories of

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