As the old adage goes, you can’t unring a bell. But GAO recently concluded that it was rational of an agency to do just that when taking corrective action in a bid protest.
Continue Reading Turns Out You Really Can Unring a Bell — GAO Upholds Agency Decision to Ignore Vendors’ Updated Quotations and Evaluate Their Original Submissions Instead
Surviving the Shutdown: Seven Things Contractors Should Consider If a Cost Overrun Is on the Horizon
The U.S. Government shutdown is now the longest in U.S. history and is starting to have serious implications for Government contractors. One of many key concerns arises when contractors approach their contract funding ceiling — can they continue to work, and what happens if there is a cost overrun?[1]
The answers are often complicated for both contractors and agency officials, and depend on the terms of the contract and the statutory basis for the program. Contractors facing this situation should keep seven points in mind.
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 Secretary of Defense to “ensure that competition in [DoD] contracts is not limited” by brand name references without a justification under 10 U.S.C. § 2304(f).
Continue Reading What’s in a Brand Name? DoD to Limit Use of “Brand Name or Equal” Contract Competitions
“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 provide a rational explanation for why they have decided to pay a premium for the awardee’s technical superiority.
Continue Reading “Hey Big Spender . . .”: GAO Reiterates That Agencies Must Meaningfully Consider Price In Best Value Tradeoffs
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 to a pre-award bid protest claim that is viable at the Government Accountability Office (“GAO”) but likely not at the Court of Federal Claims.
Continue Reading Put It In Prospectus: Reviewing the Congressional Lease Approval Process in Light of the Upcoming Lower Manhattan SEC Lease
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 a valid FCA claim based on a potential violation of a complex regulatory scheme like the TAA.
Last month, the United States Court of Appeals for the Seventh Circuit unanimously affirmed that decision in United States ex rel. Berkowitz v. Automation Aids, Inc., — F.3d — , 2018 WL 3567836 (7th Cir. July 25, 2018). In doing so, the Seventh Circuit provided additional guidance about various topics, including the Rule 9(b) standard for implied certifications and the power of the materiality defense. Our takeaways are below.
Continue Reading Alleged Sales of Non-TAA-Compliant Products Under GSA Schedule Contracts Are Not False Claims, 7th Circuit Holds
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
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 inviolate. They can be successfully protested themselves when the need to sole-source arises from a lack of advance planning on the part of the agency.
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
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 and Costs, B-415871.3 et al., Apr. 19, 2018, 2018 CPD ¶ __, an agency-level protest of a proposed purchase order or other time-sensitive contract may ultimately preclude an offeror from obtaining meaningful relief in a subsequent GAO protest of that same procurement.
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
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 New FAR Rule Implements Increased Minimum Dollar Threshold for GAO’s Protest Jurisdiction Over DoD, NASA, and Coast Guard Task Orders