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Jay Carey

Recognized by Chambers as one of the nation’s top bid protest lawyers and government contracts practitioners, Jay Carey represents clients in complex, high-stakes government procurements often worth billions of dollars. He is a vice-chair of the firm’s Government Contracts practice group and a co-chair of the Aerospace, Defense, and National Security industry group.

Jay has won bid protests collectively worth more than $100 billion, for clients across a range of industries — including aerospace & defense, energy, healthcare, biotechnology, cybersecurity, IT, and telecommunications. He litigates protests before the U.S. Government Accountability Office (GAO); the Court of Federal Claims (COFC); and state tribunals across the country. A list of his recent wins can be found under the “Representative Matters” tab.

In addition, Jay advises clients on compliance matters, conducts internal investigations, and defends against investigations by federal and state agencies. He also counsels clients on matters related to the formation of government contracts, including organizational conflicts of interest and the protection of intellectual property rights when entering into procurement contracts, grants, cooperative agreements, and “Other Transaction Authority” agreements with the government.

Jay serves as co-chair of the American Bar Association Public Contract Law Section’s Bid Protest Committee.

As previously discussed on this blog, the Federal Circuit issued a major decision in June 2024 addressing bid protest jurisdiction and standing at the Court of Federal Claims (“COFC”): Percipient.ai, Inc. v. United States.

On September 5, 2024, the United States filed a petition for rehearing of that case — requesting that the Federal Circuit reconsider its decision, either through a rehearing by the same panel or by the full court in an en banc proceeding.  Subsequently, on September 26, 2024, the protester (Percipient) filed an opposition to the petition.  It will be worth watching whether the Federal Circuit grants the government’s petition and, if so, whether any rehearing will result in a change to Percipient.ai’s holdings.Continue Reading Percipient.ai, Inc. v. U.S.:  Government Requests Reconsideration of Federal Circuit’s Decision on Bid Protest Jurisdiction and Standing

GAO’s recent protest decision in HPI Federal, LLC, B-422583, Aug. 9, 2024, 2024 WL 3823852, highlights the importance of making clear and precise Trade Agreements Act (TAA) compliance certifications when offering products for sale to the U.S. Government.   

  • On the one hand, GAO found that it was unreasonable for an agency to accept an offeror’s certification that certain of its products were “assembled in” a TAA-compliant country as evidence of the product’s TAA compliance.  GAO reasoned that the referenced assembly — which was not described in the proposal — may not satisfy the TAA’s requirement for “substantial transformation” in that country. 
  • In contrast, GAO found that it was reasonable for the agency to accept the same offeror’s certification that other products had a TAA-compliant “country of origin”. 

As these contrasting examples show, offerors should take care to ensure that their certifications are adequate to establish TAA compliance.  A certification falling short of that standard could place an award at risk, and could even render an offeror ineligible for award. Continue Reading Trade Agreements Act Certifications Undergo New Scrutiny

On June 7, 2024, the Federal Circuit issued a major decision addressing bid protest jurisdiction and standing at the Court of Federal Claims (“COFC”).  In Percipient.ai, Inc. v. United States, the court found that COFC has jurisdiction to hear a protest challenging a matter of contract administration — even where the matter arose in connection with a task order — and articulated a new test for standing applicable to the facts presented in that case. Continue Reading Percipient.ai, Inc. v. U.S.:  Matters of Contract Administration Can Be Fair Game For COFC Protests, Even When They Involve a Task Order

In legislation passed last week, Congress directed the FAR Council to issue new rules for contractor organizational conflicts of interest.  The legislation itself did not create any new OCI standards, but provided factors for the council to consider, focusing on conflicts of interest for companies that act as consultants to the government.

It is unclear at this point what the precise nature and extent of the resulting changes to the OCI rules may be.  But the new law makes it likely that there will be some fairly significant revisions.  Congress set a deadline of Summer 2024 for the new regulations, so the contracting community should be on the lookout for a notice of proposed rulemaking in the coming months, and should not hesitate to submit comments for the government’s consideration.Continue Reading New Contractor Conflict of Interest Rules May Be Coming Soon, with a Special Focus on Consulting and Advisory Contracts

On December 1, 2022, the Department of Defense, General Services Administration, and NASA published a final rule addressing “Effective Communication Between Government and Industry,” which is aimed at “encourag[ing] communication between Government acquisition personnel and industry.”

The rule adds a paragraph to FAR 1.102-2 that reads as follows:

The Government

Continue Reading New FAR Provision Aims to Encourage Communication Between Government and Industry

On Tuesday, GAO released its Bid Protest Annual Report to Congress for Fiscal Year 2022, which provides bid protest statistics and other interesting information regarding GAO’s protest system.

  • The number of protest filings dropped by 12% from FY21.  After a 12% drop in FY21, protest filings went down
Continue Reading GAO’s Annual Bid Protest Report: Number of Protests Continues to Drop While the Effectiveness Rate Remains High

On March 18, 2022, the Department of Defense published a final rule in the Defense Federal Acquisition Regulation Supplement implementing its “enhanced” debriefing process.  That process originated in the National Defense Authorization Act for Fiscal Year 2018 and had previously been implemented via a class deviation.

The DOD enhanced debriefing process — which applies to procurements under FAR Part 15, and to task order competitions under FAR 16.505 — has two hallmarks:Continue Reading DOD Issues Final DFARS Rule on Enhanced Debriefing Process

Last Tuesday, GAO released its Fiscal Year 2021 protest statistics, which as always contains a wealth of interesting information about GAO’s protest system.

  • Protest filings dropped by 12% from FY20.  After remaining fairly steady in FY19 and FY20, filings dropped in FY21, with the lowest number of cases filed


Continue Reading GAO’s Annual Report: Bid Protest Cases Filed Drop to Ten-Year Lows While the Effectiveness Rate Remains High