Flying in Friendly Skies: An In-Depth Look at the FAA’s Unique Bid Protest Forum

Federal contractors usually think of two bid protest forums: the Government Accountability Office and the U.S. Court of Federal Claims.  But another protest forum often flies under the radar: the Federal Aviation Administration’s Office of Dispute Resolution for Acquisition — aka the ODRA.

In a continuation of our blog post earlier this year, we take an in-depth look at the ODRA’s bid protest process in this new Briefing Paper.

Lowest Priced Technically Acceptable Procurements Are Less and Less Acceptable: Proposed FAR Rule Further Continues Shake-Up of LPTA Procurements

On October 2, 2019, the Department of Defense, General Services Administration, and NASA issued a proposed rule that would amend the Federal Acquisition Regulation to establish new restrictions on when and under what circumstances civilian agencies may employ Lowest Price Technically Acceptable source selection procedures.  The proposed rule would implement Section 880 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019, and follows hot on the heels of DoD’s final rule making similar — but not identical — amendments to the Defense Federal Acquisition Regulation Supplement.  (See our recent blog post on the new DFARS rule.)

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GSA’s E-Commerce Portal Program Is Here: What the New Solicitation Means for Government Contractors

After nearly two years of planning, GSA has released an RFP seeking prototypes of online shopping portals that would allow federal customers to buy COTS items from their computers.

GSA’s plan implements Section 846 of the NDAA for FY 2018, which instructed the agency to create an internet marketplace exempt from many standard procurement regulations.  As we have previously discussed in this blog, GSA began planning in 2017, sought input from industry in 2018 and 2019, and the announced earlier this year that it would proceed with proofs of concept. But while the new solicitation was a long time coming, GSA clearly is ready to move quickly: contractors will have less than a month before the proposal deadline to digest the solicitation and assess how its terms might affect their business approach, data rights, and competitive standing.

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Blowing the Whistle on a Breach of Contract? D.C. Circuit Addresses Scope of FCA’s Anti-Retaliation Rules

The False Claims Act has long protected relators from retaliation for preparing a qui tam complaint.  But what if an employee “blows the whistle” on a garden-variety problem — for instance, a laboratory that she believes is falling short of standards in a federal funding agreement?

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Lowest Priced Technically Acceptable Procurements Not Always Acceptable: New DFARS Rule Continues Shake-Up of LPTA Procurements

On September 26, 2019, the Department of Defense issued a final rule amending the Defense Federal Acquisition Regulation Supplement to establish new restrictions on the use of Lowest Price Technically Acceptable source selection procedures.  Effective October 1, 2019, this new rule imposes specific limitations and prohibitions governing when and under what circumstances LPTA procedures are appropriate for a particular procurement.  The new rule has the potential to expand — and provide a more definite legal framework for — pre-award bid protests challenging the use of LPTA source selection procedures.

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CISA Information and Communications Technology Supply Chain Risk Management Task Force Issues New Interim Report

The Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency’s (“CISA”) Information and Communications Technology (“ICT”) Supply Chain Risk Management Task Force (the “Task Force”) recently released an interim public report.  The report describes the Task Force’s efforts over the last year to develop recommendations for securing the Government’s supply chain, and outlines the potential focus areas of each of its working group over the coming year.

The report is particularly relevant to contractors that either sell ICT related products or services to the Government, or that sell ICT related components to higher tier contractors, because it offers some insight into potential supply chain risk management (“SCRM”) best practices, as well as requirements that the Government may seek to impose on contractors in the future. Continue Reading

Suspension & Debarment Update: SBA to Sharpen Suspension & Debarment Procedures

Changes are coming to the suspension and debarment practices of the Small Business Administration (SBA), and contractors should ready themselves for an uptick in suspension and debarment activity as a result.  That’s the takeaway from a new audit report released last week by the SBA’s Office of the Inspector General (OIG) criticizing aspects of the agency’s suspension and debarment practices.  Although the SBA’s suspending and debarring officials (SDOs) for Financial Assistance Programs (FAP) and All Other Programs (AOP)[1] disputed certain OIG findings about existing practices, the agency was largely receptive to the OIG’s recommendations.  As a result, it appears that the SBA soon will be adopting a series of changes aimed at formalizing its suspension and debarment policies, expediting its processing of debarment referrals, and devoting additional resources to suspension and debarment actions – all of which is likely to drive an increase in exclusion actions. Continue Reading

Will an Unappealing Trend in Battlefield Contractor Suits Continue? Following A Pattern of Appellate Indecision—Fueled by the Government’s Equivocal Litigation Stances—the Fourth Circuit Mulls En Banc Review

It’s often said that hard cases make bad law. In the realm of contractor-on-the-battlefield lawsuits, hard cases seem to be making no law—at least at the appellate level.

As detailed in an amicus brief submitted by Covington on behalf of KBR last week in CACI Premier Technology Inc. v. Al Shimari, No. 19-1328 (4th Cir.), time and again in suits against battlefield contractors, appellate courts have refused to provide definitive rulings regarding threshold, immunity-based defenses. This chronic appellate-court indecision has caused unnecessarily-protracted litigation, which in turn has imposed enormous burdens on the U.S. military; permitted expansive discovery intruding upon sensitive military judgments; and rolled up litigation costs totaling tens of millions of dollars—costs that, in many instances, are reimbursed by the government and thus ultimately borne by taxpayers. In other words, lack of timely appellate review has resulted in the very harms that immunity and related defenses are designed to prevent. Ironically, a major reason why these suits have inflicted such harm on these important federal interests is the United States’ own equivocal and inconsistent litigation positions. Continue Reading

White House Seeks Input from Biotech Stakeholders on Bioeconomy

Last week, the White House Office of Science and Technology Policy (“OSTP”) issued a request for information (“RFI”) to learn how the Government can more effectively “support scientific discovery, the development of technological advances, and increase the impact of a vibrant bioeconomy on the Nation’s vitality and our citizens’ lives.” 84 Fed. Reg. 47561 (Sep. 10, 2019). The Bioeconomy is the “infrastructure, innovation, products, technology, and data derived from biologically-related processes and science that drive economic growth, promote health, and increase public benefit.” Id. To establish guiding principles to promote and protect the U.S. Bioeconomy, OSTP is seeking input from interested parties, including “those with capital investments, performing innovative research, or developing enabling platforms and applications in the field of biological sciences, to include healthcare, medicine, pharmaceuticals, biotechnology, manufacturing, energy production, and agriculture.” Id. Of particular interest to government contractors, OSTP is seeking information regarding opportunities for public-private partnerships, infrastructure investments, and best practices for data sharing and data protection. Id. at 47562. Responses are due on or before 11:59 pm on October 22, 2019. We have included the specific topics on which OSTP seeks input below.

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Navy Modifies Acquisition Supplement to Tighten Cybersecurity Requirements and Implement the Geurts Memorandum

Almost a year after Assistant Secretary of the Navy James Geurts issued his September 28, 2018 memorandum (Geurts Memo) imposing enhanced security controls on “critical” Navy programs, the Navy has issued an update to the Navy Marine Corps Acquisition Regulations Supplement (NMCARS) to implement those changes more formally across the Navy.  Pursuant to this update, a new Annex 16 in the NMCARS provides Statement of Work (SOW) language that must be added into Navy solicitations and contracts where the Navy has determined “the risk to a critical program and/or technology warrants its inclusion.”  In addition to the technical requirements reflected in the Geurts Memo, the Navy has added Subpart 5204.73 to the NMCARS that, among other things, instructs Contracting Officers (COs) to seek equitable reductions or consider reducing or suspending progress payments for contractor non-compliance with the Annex 16 and DFARS 252.204-7012 (DFARS clause) requirements.

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