Jay Carey

Jay Carey

A Chambers-rated government contracts practitioner, Jay Carey focuses his practice on bid protests, and regularly represents government contractors before the U.S. Government Accountability Office and the Court of Federal Claims. He has prosecuted and defended more than 80 protests, including some of the most high-profile protests in recent years, for clients in the aerospace and defense, biotechnology, healthcare, information technology, and telecommunications sectors. Mr. Carey also counsels clients on compliance matters and all aspects of federal, state, and local government procurement and grant law. He counsels clients extensively on organizational conflicts of interest (OCIs) and on strategies for protecting and preserving intellectual property rights (in patents, data, and software).

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What Is Lowest Priced Technically Acceptable? GAO Clarifies Reach of New LPTA Restrictions

As previously discussed on this blog, the National Defense Authorization Act for Fiscal Year 2017 and the NDAA for Fiscal Year 2018 imposed new limitations on when the Department of Defense can use Lowest Price Technically Acceptable source selection methods.  Just last month, the Department of Defense issued a final rule amending the Defense Federal Acquisition Regulation Supplement to … Continue Reading

Not So Fast Guy: Recent GAO Decision Provides Rule For When Agency Deadlines Are Unreasonably Short

Tight deadlines are a fact of life in the world of government contracting.  Indeed, it is not unusual for the government to expect a contractor to provide large amounts of information in just a few short days.  And the draconian penalty for missing such a deadline is usually the rejection of a proposal. But can … Continue Reading

The More Things Change, the More They Stay the Same: GAO’s FY 2019 Protest Statistics

GAO released its Fiscal Year 2019 protest statistics yesterday, and there are both noticeable changes and relative constants: Protest filings are down by 16%, which means about 400 fewer protests than FY18.  The reason why is anyone’s guess, but it’s likely related in large part to GAO’s new Electronic Protest Docketing System — and associated … Continue Reading

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 … Continue Reading

House and Senate Will Debate Bid Protest Policy

The House of Representatives passed its version of the FY2020 National Defense Authorization Act (“NDAA”) last week.  The headline story was the remarkably close, party-line vote: in contrast to past years, the bill received no Republican votes, and eight Democratic Members voted against it. Those partisan dynamics obscured the inclusion of two important amendments – … Continue Reading

Flying in Friendly Skies: The Federal Aviation Administration’s Unique Bid Protest Forum

Federal contractors usually think of two bid protest forums: the Government Accountability Office and the Court of Federal Claims.  But there is another protest forum that often flies under the radar: the Federal Aviation Administration’s Office of Dispute Resolution for Acquisition — aka the ODRA. The ODRA has exclusive jurisdiction over bid protests of FAA … Continue Reading

The Topsy-Turvy World of State and Local Bid Protests

Many contractors are familiar with the well-established processes of federal bid protests.  Less known is the dizzying variety of procedures applicable to state and local bid protests.  Each jurisdiction has its own rules — in terms of timing, protestable issues, standard of review, document production, and more.  A fundamental tenet in one jurisdiction may be … Continue Reading

New Cases Confirm that FOIA Exemption 4 Protects Line-Item Pricing Information

Although the Freedom of Information Act (FOIA) allows citizens to request agency records and thus keep a close eye on their government, proprietary information is exempt from disclosure under Exemption 4, which protects “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” A substantial body of case law … Continue Reading

Federal Circuit Charts New Terrain in Commercial Item Contracting

Last month, the Federal Circuit weighed in on a largely-overlooked provision in the Federal Acquisition Streamlining Act (“FASA”) that requires federal agencies, to the maximum extent practicable, to procure commercially available goods and services to meet their needs.  In the case — Palantir USG v. United States — the court affirmed the decision by the … Continue Reading

Senate Largely Leaves Bid Protests Alone in Passed Version of FY 2019 NDAA After Threatening Major Revisions

For the first time in several years, the version of the FY 2019 National Defense Authorization Act (NDAA) that just passed the Senate does not contain any major reforms to limit bid protests.  But the bill the Senate sent to the conference committee process does contain two provisions aimed at bid protests.  Although they are … Continue Reading

In Archimedes Bid Protest, Government Contractor Takes on Herculean Task of Challenging the Agency’s OCI Determination, and Wins

Earlier this month, the Government Accountability Office (“GAO”) sustained a bid protest challenging the agency’s decision to exclude the protester from consideration based on a potential organizational conflict of interest (“OCI”).  The GAO decision serves as a reminder that an offeror that is excluded from a competition on the basis of a perceived OCI can … Continue Reading

Any Questions? : Department of Defense Implements FY 2018 NDAA Requirement for Post-Debriefing Q&A Process

This past March marked the beginning of a more fulsome required debriefing process for defense contracts.  The Director of Defense Procurement and Acquisition Policy (“DPAP”) issued a class deviation memorandum, effective March 22, 2018, requiring contracting officers to: (1) provide unsuccessful offerors an opportunity to submit additional questions within two days after receiving a debriefing; … 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

Draft DoD Guidance on SSPs and NIST SP 800-171 – Impact on Bid Protests and Ongoing Contract Performance

On April 24, 2018, the Department of Defense (DoD) issued a Notice and Request for Comment on draft guidance that DoD proposes for assessing contractors’ System Security Plans (SSPs) and their implementation of the security controls in NIST Special Publication (SP) 800-171. This includes assessments as part of source selection decisions and during contract performance. DFARS … Continue Reading

RAND Report Concludes That Protests of Department of Defense Procurements Are Rare, Effective

Last week, the RAND Corporation published a report entitled “Assessing Bid Protests of U.S. Department of Defense Procurements: Identifying Issues, Trends, And Drivers.”  In it, RAND analyzed the prevalence and impact of bid protests of U.S. Department of Defense (“DoD”) acquisitions, and concluded that DoD bid protests are both “exceedingly uncommon” and, on the whole, … Continue Reading

FAR Council Clarifies 8(a) Sole Source Justification Requirements for High Value Contracts

On October 15, the Federal Acquisition Regulatory Council (FAR Council), issued a proposed rule to clarify contracting officer and agency responsibilities when justifying sole source awards exceeding $22 million dollars made through the Small Business Administration’s 8(a) program.  The revisions directly address recommendations from a December 2012 Government Accountability Office (GAO) report titled, “Slow Start … Continue Reading

GAO’s Task Order Protest Jurisdiction Expires Today

GAO’s jurisdiction over protests of civilian agency task and delivery orders valued at more than $10 million will sunset today. 41 U.S.C. § 410(f)(3).  GAO will continue to have jurisdiction over Department of Defense task and delivery orders over $10 million — Congress made that jurisdiction permanent in 2011.  10 U.S.C. § 2304c(e). Pending protests … Continue Reading

Supreme Court Clarifies Broad Scope of the “Rule of Two” in VA Contracting

Veteran-owned small businesses scored a win at the Supreme Court with a unanimous ruling in Kingdomware Technologies, Inc. v. United States.  The case involved a law that requires the Department of Veterans Affairs (the “VA” or the “Department”) to restrict competition to service-disabled or veteran-owned small businesses when a contracting officer determines that “at least … Continue Reading

Hope for Offerors Who Win a Multiple-Award IDIQ Contract and Want to Protest an Improper Award to a Competitor

You just learned your company is one of several winners of a multiple-award IDIQ contract.  You also learned one of your competitors, which should have been ineligible, is also an awardee.  So, as things stand, you’ll have to split the contract — and compete for orders — with that competitor.  Can you file a protest … Continue Reading

GAO Protest Sustain Rate on the Rise

Through the first 5 months of FY 2016, GAO is sustaining protests at a 22% clip — a far higher rate than in recent years. GAO’s sustain rate considers only those protests that go to a decision on the merits, and reflects the percentage of those protests where GAO finds in favor of the protester. … Continue Reading

DoD To Reconsider How It Evaluates Proposed IR&D Projects In Awarding Government Contracts

The Department of Defense (DoD) is considering a proposed rule that would prevent defense contractors from promising future Independent Research & Development (IR&D) investments as a way to gain a competitive price advantage in DoD procurements.  Although DoD’s rulemaking is in its early stages, defense contractors with substantial IR&D programs should monitor these developments closely, … Continue Reading

GAO Sustains Organizational Conflict of Interest Protest Of Veterans Affairs Task Order

On February 11, 2016, the Government Accountability Office publicly released its recommendation sustaining the protest by ASM Research of a task order award by the Department of Veterans Affairs (VA) to Booz Allen Hamilton.  GAO determined that the VA failed to adequately consider a potential organizational conflict of interest (OCI) of the awardee based on … Continue Reading
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