Evan R. Sherwood

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What’s in a Brand Name? DoD to Limit Use of “Brand Name or Equal” Contract Competitions

The Department of Defense (“DoD”) has proposed a new rule limiting the use of “brand name or equal” contract competitions, calling on contracting officers to publicly justify their need for a brand name-type product before issuing a solicitation.  The rule would implement Section 888(a) of the National Defense Authorization Act of 2017, which directed the … Continue Reading

“Hey Big Spender . . .”: GAO Reiterates That Agencies Must Meaningfully Consider Price In Best Value Tradeoffs

In three related bid protest decisions made public last week, the Government Accountability Office (“GAO”) reaffirmed the principle that agencies must meaningfully consider price when making best value tradeoff decisions.  GAO sustained the protests, stressing that merely paying lip service to price while selecting a more expensive, higher-rated offeror is not sufficient — agencies must … Continue Reading

Put It In Prospectus: Reviewing the Congressional Lease Approval Process in Light of the Upcoming Lower Manhattan SEC Lease

With the General Services Administration’s (“GSA”) recent issuance of a prospectus in connection with its announced plan to acquire new office space for the Securities and Exchange Commission (“SEC”) in lower Manhattan, now is a good time for a quick refresher about the congressional lease approval process under 40 U.S.C. § 3307, which potentially gives rise … Continue Reading

Alleged Sales of Non-TAA-Compliant Products Under GSA Schedule Contracts Are Not False Claims, 7th Circuit Holds

Last year, we wrote about a trial court’s decision to dismiss a False Claims Act (“FCA”) complaint regarding alleged Trade Agreements Act (“TAA”) non-compliances because the relator failed to plead fraud with “particularity” under Rule 9(b).  That decision offered a sweeping rebuke of speculative FCA claims, and emphasized why it can be difficult to present … Continue Reading

Takeaways From Recent FCA Decisions On Buy American Act and Trade Agreements Act Compliance

Due to the government’s increased focus on domestic preference requirements – for example, through President Trump’s formal policy and action plan for agencies to “scrupulously monitor, enforce, and comply” with the so-called “Buy American Laws,” and Congress’s proposed legislation to make certain Buy American requirements more robust – contractors should not be surprised if there … Continue Reading

A Bridge Too Far — Court of Federal Claims Sustains Protest of Fifth (Yes, Fifth) Sole-Source Bridge Contract Awarded to Incumbent During Protracted Bid Protest Litigation

Non-incumbent awardees who are defending their awards against a bid protest often view sole-source “bridge” contracts issued to the incumbent as something akin to death and taxes — an unpleasant, yet seemingly inescapable fact of life.  But a recent Court of Federal Claims decision offers an important reminder that these types of contracts are not … Continue Reading

When Not to Pass Go and Go Directly to GAO: Decision Highlights Risk of Protesting Purchase Orders and Other Time-Sensitive Contracts at the Agency Level

For contractors who are concerned that filing a bid protest in the Government Accountability Office or Court of Federal Claims may alienate their customer, agency-level protests are a welcome, less-confrontational alternative that allows them to raise their concerns in a discreet, non-public fashion.  But as shown by GAO’s recent decision in GovSmart, Inc. – Protest … Continue Reading

New FAR Rule Implements Increased Minimum Dollar Threshold for GAO’s Protest Jurisdiction Over DoD, NASA, and Coast Guard Task Orders

In a new rule announced yesterday, the FAR Council implemented prior statutory changes to GAO’s bid protest jurisdiction.  For task orders issued by the Department of Defense, NASA, or the Coast Guard, the rule provides that GAO will have jurisdiction only over task orders “valued in excess of $25 million.”… Continue Reading

Alleged TAA Non-Compliance Is Not “Material” Under The False Claims Act, Federal Court Holds

Contractors that must comply with the government’s domestic preference laws should take note of United States ex rel. Folliard v. Comstor Corp., __ F. Supp. 3d __, 2018 WL 1567620 (D.D.C. 2018) — a recent decision dismissing a country-of-origin fraud lawsuit initiated by serial relator Brady Folliard.… Continue Reading

If Shulkin Didn’t Resign, Who Runs the VA Until a New Secretary Is Confirmed? A Vacancies Act Puzzle

Recent news reports have raised a substantial question about who has authority to run the Department of Veterans Affairs (“VA”) in the wake of Dr. David Shulkin’s departure from the agency.  According to the White House, Dr. Shulkin resigned.  Meanwhile, Dr. Shulkin himself has publicly insisted that he did not resign and was instead fired. … Continue Reading

GSA Unveils Plan for Commercial Online Shopping Portal

Following instructions from Congress to create a new online shopping system leveraging existing commercial practices, the General Services Administration (“GSA”), in coordination with the Office of Management and Budget (“OMB”), has released an implementation plan (“Plan”) to begin e-commerce purchases by 2019.  As discussed in a previous blog post, GSA’s Plan is a first step … Continue Reading

At Long Last – GSA Issues Final Rule on Purchasing “Order-Level Materials” on Schedule Orders

Few issues have bedeviled the GSA Schedules program as much as the provision of incidental supplies and services under Schedule orders.  For years, it has been unclear how such supplies and services are to be purchased and priced, since they are not themselves on Schedule. But now, with GSA’s new Order-Level Materials (“OLM”) rule, GSA … Continue Reading

Changes Coming to the FAR: Government Proposes New Rules on Data Breaches, Cost Evaluation of IDIQ Proposals, and Overseas Small Business Contracting

Federal contractors may be subject to a slate of new regulations in 2018, including rules that increase cyber reporting burdens, expand small business competition, and change the procedures for competitively awarding IDIQ contracts. Among the proposed rules, announced in the Semiannual Regulatory Agenda of the FAR Council and the General Services Administration (“GSA”), are changes … Continue Reading

GSA Hears Comments from Industry About e-Commerce Portals

As part of ongoing efforts to create an online marketplace for government purchasers, GSA officials held a public meeting yesterday to discuss potential market structures and legal requirements. A wide range of stakeholders attended the hearing, responding to questions from GSA on issues such as how many online portals should be implemented, who should have … Continue Reading

Online Shopping for Government Contracts? GSA Invites Industry to Comment on Its Upcoming e-Commerce Portals

In an effort to create a new online market for government contracts, the General Services Administration (“GSA”) has invited industry to comment on the development and design of e-commerce portals for commercial procurements. GSA’s request for comments will be published tomorrow, December 15, 2017.  This comment period provides a valuable opportunity for contractors to advise … Continue Reading
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